EMPOWERING THE POOR: Through Human Rights Litigation

Social and Human
Sciences Sector
EMPOWERING
THE POOR
Through Human Rights Litigation
Maritza Formisano Prada
Manual
Empowering
the Poor

Maritza Formisano Prada
Empowering the Poor Through Human Rights Litigation
Published in 2011 by UNESCO, United Nations Educational, Scientific and Cultural Organization
7, place de Fontenoy, 75352 Paris 07 SP, France
UNESCO 2011
ISBN: 978-92-3-001027-0
Published in 2011 by the United Nations Educational, Scientific and Cultural Organization.
The ideas and opinions expressed in this publication are those of the authors and are not necessarily those of UNESCO and do not
commit the Organization.
The designations employed and the presentation of material throughout this publication do not imply the expression of any
opinion whatsoever on the part of UNESCO concerning the legal status of any country, territory, city or area or of its authorities or
concerning the delimitation of its frontiers or boundaries.
Author/Research and writing: Maritza Formisano
Edited by: David McDonald
Photos: Ana C. Golpe; UNESCO/Le Mignon Misato; Zsolt Zatrok; UNESCO/Petterik Wiggers; Asianet-Pakistan; UNESCO/Roger
Dominique; US Army Africa; Asianet-Pakistan; UNESCO/Esther Mooren
Graphic design: MH DESIGN/Maro Haas
Acknowledgements
This publication was realized under the overall supervision of Ms Angela Melo, Director of the Division of Human Rights,
Democracy and Philosophy and under the direct supervision of Ms Moufida Goucha, Chief of the Human Security, Democracy
and Philosophy Section and Mr Alexander Schischlik, Chief of the Struggle against Discrimination and Racism Section.
Special thanks to the all United Nations Bodies, agencies and programmes that have provided their comments and suggestions
to this publication and in particular Kinshore Singh, Office of the High Commissioner for Human Rights (OHCHR); Petra Pitcha,
Methodology, Education and Training Section (METS) of the OHCHR; Christian Courtis, OHCHR; Barbara Ekwall, Coordinator,
Right to Food Unit Food and Agriculture Organisation, Food and Agriculture Organization (FAO); Rostedt, Annelie Gun Elisabeth
World Health Organization (WHO); Nygren Krug, Helena Maria, WHO; Yehenew Walilegne WHO; Annette Peters, Assistant,
Department of Ethics, Equity, Trade and Human Rights, Information, Evidence and Research, WHO; Walilegne, Yehenew Tsegaye,
WHO.
Our sincere gratitude goes to NGOs and experts who have participated in this publication including: Malcolm Langford,
Director, Socio-Economic Rights Programme, SERP, Norwegian Centre on Human Rights University of Oslo; Biraj Patnaik,
Principal Adviser, Office of the Commissioners to the Supreme Court of India; Ana Maria Suarez, Food First Information and
Action Networtk, FIAN International; Yves Prigent, Amnesty International (AI); Sara Bassiuoni, Amnesty International; Luisa
Cruz UNESCO Etwea; Maider Maraa, Kultura eta Giza Garapena Cultura y Desarrollo Humano, UNESCO Etxea, Natalia Uribe,
UNESCO Extea; Monica Hernando, UNESCO ETXEA; Alexandra Aubry, NGO Terre des Hommes; Bret Thiele, Center On Housing
Rights and Evictions (COHRE); Ginette Karekinyana, International Cooperation Ethics Advisory Agency (ACECI).
We are also grateful to all staff of the UNESCO Division of Human Rights, Democracy and Philosophy as well as the UNESCO
Division of Social Science Research and Policy for their suggestions and support.
Abbreviations and Acronyms

ACHPR
African Court for Human and Peoples Rights
ACHPR
African Commission for Human and Peoples Rights
ACHPR
African Charter for Human and Peoples Rights
CESCR
Committee on Economic, Social and Cultural Rights
CRC
Convention on the Rights of the Child
ECOWAS
Court of the Economic Community of West African States
EFA
Education for All
ECHR
European Court of Human Rights
FAO
Food and Agriculture Organization of the United Nations
IACtHR
Inter-American Court of Human Rights
IACHR
Inter-American Commission on Human Rights
ILO
International Labour Organization
NGO
Non-Governmental Organization
OECD
Organization for Economic Co-operation and Development
OHCHR
Office of the High Commissioner for Human Rights
PRSP
Poverty Reduction Strategy Paper
SP
Social Protection
UN
United Nations
UNAIDS
Joint United Nations Programme on HIV/AIDS
UNDAF
United Nations Development Assistance Framework
UN-DESA
United Nations Department of Economic Affairs
UNDP
United Nations Development Programme
UNESCO
United Nations Educational Scientific and Cultural Organization
UNFPA
United Nations Population Fund
UN-HABITAT United Nations Human Settlements Programme

UNHCR
Office of the United Nations Hugh Commissioner for refugees
UNICEF
United Nations Childrens Fund
WHO
World Health Organization
PReface
The first of the Millennium Development Goals (MDGs) that 184 States approved in
2000 sets the priority to halve extreme poverty and hunger by 2015.
Consecutive reports on the achievement of the MDGs show

that some of the poorest countries have made considerable
improvements related to education, health, employment and
civic participation, which tend to reduce extreme poverty.
However, despite measurable progress, the most vulnerable
and marginalized populations and groups women, children,
homeless, unemployed persons, people with disabilities, older
people, indigenous people, migrants and displaced remain
marginalized and largely excluded from these achievements.
As an illustration, the 2011 Millennium Development Goals
Report shows that it is the poorest children that have made
the slowest progress in terms of improved nutrition, and that
opportunities for full and productive employment remain
particularly slim for women. This report also highlights the
powerful influence of social and economic circumstances on
life chances, as children from the poorest households, those
living in rural areas and girls are the most likely to be out of
school.
These results signal the need to re-orientate actions
being taken to enable all people, especially the poor and
marginalized, to benefit from improvements resulting from
these new measures. In this sense, every action should be
guided by a social inclusion approach based on the principle
of non-discrimination, to ensure equal opportunity for all,
regardless of background.
UNESCO is working to promote the formulation of policies
and strategies committed to equity and social justice and
which respect and value diversity. Projects and programmes
are being developed with an integrated Human Rights Based
Approach (HRBA) with a view to building more inclusive and
just societies, and making social inclusion the Organizations
priority for the next biennium (20122013). Indeed,
mainstreaming human rights implies that all programmes,

policies and technical assistance should further the realization
of human rights as laid out in the Universal Declaration of
Human Rights and other Human Rights instruments. It also
implies that human rights principles and standards should
guide the programming process in all fields and all stages,
including the design, implementation, monitoring and
evaluation of public policies. HRBA helps to explain the value
of human rights in development and in National Programming
Processes in order to define inclusive patterns in which
everyone feels valued and has the opportunity to participate
fully in the life of society.
Social exclusion is about resources, opportunities and
capabilities. It concerns all groups that live in conditions of
isolation and disconnection from society and development
processes. In this sense the challenge is to re-connect
these groups by means of targeted actions that enable and
motivate them to become active citizens. This publication
Empowering the Poor: through Human Rights Litigation,
views the addressing of legal provisions as the first step in
generating social change.
Discrimination on the grounds of poverty often prevents
access to the very tools needed to fight this condition. It is
important to fight against recognized forms of discrimination
which include race, ethnicity, religion, gender and others. Poor
people are also often discriminated against on the basis of
their socio-economic condition. The challenge is to overcome
this major obstacle to their empowerment; otherwise, those
trapped in poverty may fall into a vicious circle from which it
is hard to break out.
In the struggle to defeat poverty, it is important not to
forget that all human rights are universal and indivisible.
This means that political, civil, economic, social and cultural

rights are connected and equally important for their mutual
realization. In particular, economic, social and cultural rights
have a crucial role to play in the fight against poverty.
They constitute the first step to ensuring that access to all
human rights is granted to each individual in order to attain
universality. In this regard, the adoption of the Optional
Protocol to the International Covenant on Economic, Social
and Cultural Rights on 2008 was an important advancement,
as it enables individuals or groups of individuals to be entitled
to any of the rights enshrined by this Covenant before the
Committee on Economic, Social and Cultural Rights.
UNESCO supports the selection of good practices from
organizations and Members States that have taken the lead
in promoting social inclusion to serve as inspiration for other
stakeholders. Furthermore, the Organization encourages the
collection of data to evaluate and interpret the impact of
national policies, laws and regulations on main policy areas
such as active participation of youth, women, migrants,
indigenous peoples and persons with disabilities. UNESCO
is committed to understanding and addressing emerging
social and ethical challenges of excluded vulnerable groups

of society and to turn these challenges into opportunities for
social and ethical innovation.
This publication Empowering the Poor: through Human
Rights Litigation aims at supporting these processes. It is a
pedagogical tool thatseeks to guide grassroots organizations
as well as State authorities in their work to eradicate poverty.
This manual seeks to contribute to the development of the
capacities of both duty-bearers to meet their obligations and
of rights-holders to claim their rights. It is a tool aimed at
supporting advocacy and training initiatives as well as actions
that share knowledge, reduce deprivation and preserve human
dignity with the view to creating an inclusive culture of peace
in which everyone has the freedom to imagine a better world
and the tools to shape reality in this direction.
Pilar Alvarez Laso

Assistant Director-General
for Social and Human Sciences
INTRODUCTION
UNESCOs project on poverty has focused on a conceptual analysis of poverty
within a human rights framework. Through this project, the Organization seeks to
stimulate commitment within the international community to assume its moral
obligation to take action for the eradication of poverty, and to contribute towards
the realization of human rights for all peoples without discrimination of any kind.
Fundamental transformations in societies should be based on

human dignity, freedom and equality. Democracies therefore
have to enable the participation of all actors of the globalized
world meaning that men and women should be treated as
equals. Poverty excludes human beings from participation
in society and creates the conditions for material and legal
marginalization. This is often intensified by a lack of concrete
and pertinent policies addressing the needs of the poor, and
the persistence of policies, processes and ideologies that
enable poverty.
UNESCOs project is a response to this challenge. It advances
the idea that linking poverty and human rights creates an
opening where the former concept can be understood and
addressed in terms of deprivation of capabilities or lack of
empowerment, as a denial and even a violation of human
rights, rather than in terms of income or charity. People
living in poverty may lack formal rights or, where formal
rights exist, be denied substantive, equitable access to the
rights formally accorded to them. These people are placed
in a situation of injustice, of vulnerability and are deprived
of dignity a core element of all human
rights. When people are unable to enjoy
rights such as adequate food, water,
clothing, the highest attainable standard
of health and adequate housing, they are
unable to live decent lives. Poverty also
places pressure on institutions and civil
society to undertake legal courses of
action to define effective public policies
to fight against this threat.
UNESCO is devoted to this commitment and affirms the

necessity of international cooperation in combating
poverty from a human rights perspective. To this end, the
Organization has published the collection Poverty and
Human Rights, composed of four volumes Poverty and
Human Rights: Who Owes What to the Very Poor (edited by
Thomas Pogge); Poverty and Human Rights: Laws Duty to the
Poor (edited by Geraldine Van Bueren); Poverty and Human
Rights: Theory and Politics (edited by Thomas Pogge); and
Poverty and Human Rights: Economic Perspectives (edited by
Brd Andreassen, Stephen Marks and Arjun Sengupta). This
first research phase has sought to uncover the core elements
of poverty and to combat these using a multidimensional
approach including philosophical, legal, political science and
economic perspectives.
The second phase of the challenge is to link the above
conceptual approaches concerning freedom from poverty
with policy-oriented action. The creation of standards within
legal frameworks on the reality of poverty is crucial to this
endeavour. Non-Governmental Organizations (NGOs) are
among the main brokers between policy-makers and the

poor, and have proposed innovative approaches to eradicate
poverty. They occupy a unique position between the poor
and marginalized sectors of society and institutions, where
they focus on development, the causes of poverty and its
consequences, social protection, empowerment, and so on.
NGOs not only participate in the monitoring and followup of court decisions, but also bring cases with significant
potential for the poor to national and international attention.
UNESCO has therefore decided to develop a manual to assist
NGOs in this endeavour Empowering the Poor : through
Human Rights Litigation1
Why a manual?
The purpose of this manual is to collaborate with grass-roots
organizations, in particular with NGOs, in defining the content of
economic, social and cultural rights (ESC rights) and to empower
the actions of NGOs working to tackle poverty in the field.
By highlighting the interpretation techniques used by judges
throughout a series of landmark cases on ESC rights around
the world, the manual elaborates standards for poverty
eradication extracted from comparative case law. Indeed,
the manual supports the approach that highlighting the
interpretational efforts of courts will channel the voices of
the poor and provide principles and precedents for action.
The manual is based on the idea that the enforcement of ESC
rights will become a reality and will increase the clarification
of rights for the right holder, the duty bearer and civil society
as a whole. It will provide not only locus standi to NGOs, but
empower their role in the field.
What approach?
The manual does not accept the traditional denomination of
ESC rights as second-generation human rights, contrasted
with civil and political rights. This separation leads to
misconceptions of the indivisibility of human rights and does
not take into account the scope and nature of ESC rights and
the current improvements that adjudication has provided for
their definition. Such a division runs contrary to the principles
1. Empowering the Poor: Through Human Rights Litigation. Manual for NGOs
of the indivisibility and interrelatedness of all human rights

and, as such, should be avoided.
Consequently, this manual focuses on the principles of interdependency and inter-relatedness, which recognize that
the full enjoyment of any particular right depends upon the
enjoyment of others. In this way, chapters related to ESC
rights are connected to each other and feature key examples
of case law that highlight their inter-dependency.2 In addition
to these principles, the chapters of this manual highlight the
principle of universality, and special NGOs initiatives and legal
decisions for vulnerable groups are discussed in this context.
This manual deliberately does not only concentrate on the
leading principles of Human Rights Based Approach (HRBA).
Instead, it proposes a wider approach to understanding and
addressing poverty that includes assessment of the roots of
power relations in societies. Power relations are assessed
according to evidence of legal advancements in national
adjudication of cases dealing with ESC rights as enabling legal
mobilization strategies, as well as the full engagement of all
stakeholders on these issues. The manual also underlines the
critical role of NGOs in advancing ESC rights in the field.
What reasoning?
The manual has, as its starting point, the idea that one of the
main obstacles to the justiciability of ESC rights under the
International Covenant of Economic, Social and Cultural Rights
(ICESCR) is ascertaining whether or not a State party has
satisfied its obligations with respect to the rights enumerated
in the treaty. The underlying reason for this challenge appears
to be the concept of progressive realization, which explains
how State parties continue to advance in fulfilling the right
even if the right is not fulfilled in its entirety.
For several years, judges have developed, through their
judicial decisions, standards for measuring the advancement
of ESC rights. This manual seeks to provide concrete examples
of rights enforcement and clarification of the relationship
between the judicial enforcement of ESC rights and relief for
the poor in reality. Indeed, comparative cases around the
world provide evidence on how a human rights perspective can
relieve poverty and heighten the empowerment of the poor.
2. For example, housing rights can not be thought of as merely having four walls and
a roof, but involves an intricate consideration of adequacy, health, security and the
law.
Since progressive social movements are inserting rights-based

litigation strategies into their work, this manual is directed
to NGOs and grassroots organizations. For this reason, court
decisions represent strategic elements that can provide useful
guidance to effectively advance the struggle for human rights
for the poor.
What methodology?
Following wide consultation among more than 200 NGOs
worldwide, selected practices that have proved their worth
in poverty eradication have been identified and integrated
as text boxes. In addition, selected examples of case law
have been systematized by human right, so that they can
be understood together with strategies for ensuring the
progressive realization of the right in question. In this sense,
this pedagogical manual addresses the main ESC rights
which are inseparable from human dignity and lie at the heart
of poverty eradication. In other words, the right to: adequate
food, adequate housing, education, the highest attainable
health, and access to safe drinking water and sanitation. It
also proposes advancements in the definition of the right to
benefit from scientific progress and its applications.
The cases included in the manual reveal the activism of courts
in protecting the human rights of the most marginalized and
vulnerable groups of society, including children, older people,
people with disabilities, indigenous groups and minorities,
and migrants. Women and youth are mainstreamed within
each chapter as actors for social change. Selected cases
on ESC rights quoted in the text have provided crucial core
elements in the fight against poverty and have empowered
communities in the combat against poverty.
The principles of non-discrimination and equal

protection are present throughout the publication as
indispensable duties of immediate effect, since they lie at the
core of processes of power distribution, authority, capability
and action responsiveness within society. Gender issues are
also highlighted as a vital component to be mainstreamed in
every anti-poverty action, programme or strategy. A gender
perspective heightens the sensitivity of any intervention and
leads to a focus on behavioural change in societies.
The three introductory chapters serve as framework material
that grassroots organizations and practitioners may analyse
and apply in concrete, oriented actions for specific focus
areas developed in the subchapters.
This manual is a tool that aims to contribute to the discussion
on best ways and means to eradicate severe poverty and on
how to include all efforts in fighting this evil. Conceptualizing
and clarifying the content of poverty through human rights
is only a first step contributing to the debate. Other means,
such as the design of targeted and inclusive public policies,
as well as the elaboration of mechanisms in order to measure
and monitor improvements indicators and Index- shall be
developed in order to create strong impact in drawing people
out of marginalization. This manual should therefore be taken
as a first effort in this research.
Angela Melo
Director
Social and Human Sciences Sector
Maritza Formisano
Consultant for UNESCO
How to use this manual

The manual comprises three chapters and six sub-chapters.
Chapter 1 Poverty and human rights develops the conceptual framework for the concept of poverty and links it to
notions of capability and vulnerability, as well as to human rights. It presents some examples of cash transfer programmes
(CTPs) and related laws in order to support what is referred to as the normatization of poverty.
Chapter 2 The role of justiciability in the fight against poverty is dedicated exclusively to the clarification of
justiciability and the challenges of justiciability as a tool for social transformation and inclusion of the most vulnerable. This
chapter presents justiciability as one of the steps of a holistic strategy to overcome poverty. It defends the role of judges as
guarantors of rights and freedoms of the most invisible members of society.
Chapter 3 Conceptual clarifications of economic, social and cultural rights develops, in general terms, the
notion of obligations in two senses: it presents the core obligations of ESC rights as well as the related state obligations
(namely to respect, protect and fulfil). This general understanding of obligation is supported by case law and NGO activities
that demonstrate how to connect the policy actions of grassroots organizations with standards derived from adjudication.
Sub-chapters contained in the manual relate to the right to education, adequate food, adequate housing, safe drinking
water and sanitation, the right to enjoy the highest attainable standard of physical and mental health and the right to enjoy the
benefit of scientific progress and its applications. Each sub-chapter applies the notion of core obligations and state obligations
to each right, and provides illustrative examples of case law to present comparative standards for the protection of the most
vulnerable and respect of their human dignity.
Throughout this publication you will find information contained in two types of boxes:
Grey text boxes provide landmark examples of comparative case law provided by jurisdictional and nonjurisdictional bodies that have contributed to the clarification and implementation of ESC rights as well as
conceptual and complementary information of core issues with the view to improving understanding.
Yellow text boxes illustrate activities of NGOs as well as policy oriented initiatives undertaken by other
actors, including governments, working to eradicate poverty at national and local levels.
Each chapter includes practical exercises that reinforce the material presented. These exercises encourage the reader to go
further and to apply the material to his or her own experience.
10
TABLE OF CONTENT
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Chapter I. POVERTY AND HUMAN RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

1.
2.

3.
4.
5.

Defining the concept of poverty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Poverty as a violation of human rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
a. Poverty at the UN System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
b. A model of law to fight poverty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
c. Bill 112 of Quebec. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
d. Cash Transfers Programmes (CTPs) as social inclusive policies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Translating MDGs into rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Mainstreaming gender into poverty agendas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Prioritizing vulnerable groups. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
a. Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
b. Youth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
c. Older people . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
d. People with disabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
e. People living with HIV-AIDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
f. Migrants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
g. Displaced people . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
h. Indigenous people. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
i. Lesbians, gays, bisexual and transgender people (LGBT). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Chapter II. THE ROLE OF JUSTICIABILITY IN THE FIGHT AGAINST POVERTY. . . . . . . . . . . . . . . . . . . . . . . . . . . 27

1.
2.
3.
4.

5.
Defining the concept of justiciability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

National frameworks for justiciability of ESC rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
The role of judges in the advancement of ESC rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Correlations between justiciability and social justice: towards a transformative constitutionalism. . . . . . . . . . . . . . . . 31
a. Justiciability providing relief to people and setting the basis for non-discrimination and recognition. . . . . . . 31
b. Justiciability providing relief to the most vulnerable through the redistribution of goods. . . . . . . . . . . . . . . . . . . . . 32
c. Justiciability transforming the reality of special attention groups. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
What role for NGOs in advancing justiciability?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Chapter III. CONCEPTUAL CLARIFICATIONS ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS. . . . . . . . 37

1. ESC rights and civil and political rights in the struggle against poverty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
2. State obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

a. Obligation to respect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

b. Obligation to protect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

c. Obligation to fulfil. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
3. The duties of immediate effect: non-discrimination and equal protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
11
4.
5.
6.
7.
Minimum core approach to ESC rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The progressive realization of ESC rights? How to measure progressive realization of the right?. . . . . . . . . . . . . . . . . . .
The prohibition of retrogressive measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Maximum available resources clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
43
43
45
45
Chapter IV. ALLEVIATION OF POVERTY BY ENSURING THE ENJOYMENT OF ECONOMIC,

SOCIAL AND CULTURAL RIGHTS (ESCR). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SUBCHAPTERS
The Right to Education. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

1. Definition of the right to education. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
2. Normative content of the right to education. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

a. The 4A System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

b. Progressive realization of the right to education. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

c. Non-discrimination and equal protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Education without discrimination on grounds of race. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Education and nationality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51

Education without discrimination based on gender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Education of minorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Children with disabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Education in conflict situation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Education for people in poverty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Equality of opportunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
3. Human rights approach to Education for All. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
4. Human rights education. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
5. Strategies for justiciability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
The right to adequate food . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

1.
2.
3.
4.
5.

6.
7.
Definition(s) of the right to (adequate) food1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

State obligations under the right to food. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Core obligations under the right to food. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60
Duties of equal protection and non-discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Voluntary Guidelines to support the progressive realization of the right to adequate food
in the context of national food security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Developing legislative frameworks recognizing and implementing the right to food . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Strategies for justiciability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
The right to adequate housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

1.
2.
3.
4.
Definition of the right to adequate housing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

National Improvements on the definition of the right to adequate housing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Minimum core obligations related to the right to adequate housing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
State obligations related to the right to housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. In this paper we refer to the right to food and the right to adequate food indistinctly, in accordance with the interpretation provided
by the Committee on Economic Social and Cultural Rights in General Comment n12. According to this definition, the right to food
includes the adequacy and sustainability of food availability and access.
12
65
66
67
68
5. Forced evictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
6. Duties of equal protection and non-discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
7. The role of ngos inadvancing the right to housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
The right to enjoy the highest attainable standard of physical and mental health. . . . 77
1. Definition of the right to enjoy the highest attainable standard of physical and mental health . . . . . . . . . . . . . . . . . . . . . . . . . . 77
2. Core obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
3. Duties of equal protection and non-discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
4. Health of women. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
5. Progressive realization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
6. State obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
7. Specific protection for marginalized and vulnerable groups. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

a. Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

b. Persons with disabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

c. HIV-AIDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

d. Older people . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

e. Migrants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

f. Displaced people . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
8. Strategies for justiciability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
The right to safe drinking water and sanitation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

1.
2.
3.
4.
5.
6.
Evolution of the right to safe drinking water and sanitation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Normative content . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
State obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Duties of equal protection, non-discrimination and special attention to vulnerable and marginalized groups . . .
Limits to the right to safe drinking water and sanitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Strategies for justiciability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
87
88
91
93
94
95
The right to enjoy the benefits of scientific progress and its applications. . . . . . . . . . . . . . . . . 97
1.
2.

3.
4.
5.
Definition of the right to enjoy the benefits of scientific progress and its applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Normative content . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
a. Progressive realisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
b. Science and human rights principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
c. Human rights based approach to science. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Core obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
The relation of the right to other human rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Strategies for justiciability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
ANNEXES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
n Optional Protocol to the ICESCR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
n Form to be sent to UNESCO by practioners and NGOs that would like to complete, add or update

information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
13
Chapter I
Chapter I:
Poverty and human rights

15
1. Defining the concept of poverty
16
2. Poverty as a violation of human rights
a. Poverty at the UN System
b. A model of law to fight poverty
c. Bill 112 of Quebec
d. Cash Transfer Programmes (CTPs) as social inclusive policies
21
3. Translating MDGs into rights
23
4. Mainstreaming gender into poverty agendas
5. Prioritizing vulnerable groups
a. Children
b. Youth
c. Older people
d. People with disabilities
e. People living with HIV-AIDS
f. Migrants
g. Displaced people
h. Indigenous people
i. Lesbians, gays, bisexual and transgender people (LGBT)
Chapter I
1. Defining the concept of

poverty
1] The concept of poverty has evolved over recent years.
Today, poverty, not only refers to a lack of resources to live a
life in dignity, but also to the concept of capability, which
has been largely developed and influenced by the capability
approach of Amartya Sen.1 This approach propounds a
definition of poverty as a dynamic concept, along with a set
of guidelines for the development of policies to focus on a
multidimensional approach.
2] Poverty is therefore closely linked to the notion of
vulnerability and to the necessity to provide tools to the
poor by focusing in their assets. These assets give them
power to move out from poverty and to change the rules of
power in society. In this sense, the concept of poverty is not
necessarily separated from its economic or political content,
but is rather completed.
3] It is also linked to the notion of dignity insofar as it relates
to the well-being of a person and to the things that this
person can or cannot do. Consequently, it is also related to the
freedom of opportunities necessary for achieving this well
being.2 As such, assets are identified as the basis of agents
power to act to reproduce, challenge or change the rules that
govern the control, use and transformation of resources.
4] Poverty, in the concept of the Office of the High
Commissioner for Human Rights (OHCHR) in the Draft
Guidelines on Human Rights approach to poverty reduction can
further be linked to be[ing] well nourished, avoiding morbidity
Ana C. Golpe
Chapter I:
Poverty and human
rights
and premature mortality, being adequately sheltered, having
basic education, being able to ensure security of the person,
having equitable access to justice, being able to appear in
public without shame, being able to earn a livelihood and
taking part in the life of the community.3 In terms of the
High Commissioner, anti-poverty policies are more likely to
be effective, sustainable, inclusive, equitable and meaningful
to those living in poverty if they are based upon international
human rights.4
5] This multidimensional approach to poverty has been
conceptually developed by UNESCO in the collection Freedom
from Poverty as a Human Right. This collection comprises
four volumes,5 defining the philosophical, economic, political
and legal approaches to poverty.
In this sense, in relation to the philosophical debate, the
first volume develops the nature of and relations between
human rights, justice, positive and negative duties and
obligations, social institutions, solidarity, dignity, causality,
harm, identity and collective responsibility. It clarifies these
concepts with a view to building a moral consensus within
society on the right not to be poor.
The second volume addresses concepts such as: the
need for a global theory of justice; ethics of distribution;
the necessary definition of priorities among activities
undertaken to eradicate poverty; the call to re-evaluate
our social, political and economic structures, institutions
and policies; and the role of courts and constitutions in
the enforcement of economic and social rights. This volume
examines the putting into practice of theories of justice and
human rights.
1. Drawn up and expanded in the work of Amartya Sen. See: Development as freedom,
Oxford, Oxford University Press, 1999; Inequality re-examined, Inequality Reexamined.
Harvard University Press, 1995; Comodities and capabilities, Oxford, Oxford University
Press, 1987; Poverty and Famines: An Essay on Entitlements and Deprivation, Oxford,
Clarendon Press, 1982.
3. See OHCHR Draft Guidelines on Human Rights approach to poverty reduction, para. 46.
2. See OHCHR, Human Rights and Poverty Reduction: a conceptual framework, 2004,
available at www2.ohchr.org/english/issues/poverty/docs/povertyE.pdf (accessed
7 August 2009) and OHCHR Principles and Guidelines for a Human Rights Approach to
Poverty Reduction Strategies, available at: www2.ohchr.org/english/issues/poverty/
guidelines.htm (accessed 7 August 2009).
5. See UNESCO collection Freedom from Poverty as a Human Right, UNESCO Publishing,
2010: Vol. 1 Who Owes What to the Very Poor (edited by T. Pogge); Vol. 2 Theory and
Politics (edited by T. Pogge); Vol. 3 Economical Perspective (edited by A. Sengupta,
S. Marks and B. Andreassen); and Vol. 4 Laws Duty to the Poor (edited by G. Van
Bueren).
4. Poverty and the International Covenant on Economic, Social and Cultural Rights:
statement adopted on 4 May 2001 by the Committee on Economic, Social and Cultural
Rights (E/C.12/2001/10), para. 13.
15
The third volume explores the interfaces of economic choices

and priorities, and the promotion and protection of normative
standards. This volume gathers the contributions of leading
economists and social scientists, who apply their particular
modes of analysis to the threat of poverty.
The fourth volume encompasses crucial notions such as
social transformations, democracy, judicial enforceability and
human rights as current legal practice. It also envisages how
the right not to be poor could be included within a wider
right to equality. Lastly, it looks to clarify the scope of state
obligations derived from human rights frameworks in order to
create new opportunities to tackle systemic poverty.
2. Poverty as a violation of
human rights
6] Approaching poverty as a violation of human rights,
converts poverty into an unavoidable imperative. Indeed,
human rights provide a framework for poverty eradication in
different ways. Poverty is at the same time the cause and the
consequence of human rights violations: a cause because
the poor remain invisible and, thus, far from attempts to help
them claim their rights, and because the manifestations of
poverty are hunger, homelessness and illiteracy, among many
others; a consequence, because poverty can derive from an
action or omission, that is, a violation of a human right,
such as the lack of access to basic healthcare resources and
forced eviction for example. In other words, poverty reflects a
violation of human rights where the poor are deprived of the
enjoyment of those human rights, or simply have no rights
at all. It is therefore consequently a violation of their human
dignity.
7] But not all deprivation (lack of home, food or education,
etc.) reflects a condition or situation of poverty. But a
sustained and inhuman situation can lead to or exacerbate
poverty. For this reason, the fight against poverty requires
actions that prevent such sustained deprivation. The challenge
is therefore to connect the powerless with the empowering
potential of human rights and to bring new mechanisms to
bear the eradication of poverty. As underlined by the UN
Committee of Economic, Social and Cultural Rights (here after
Committee on ESC Rights, the Committee or CESCR) in the
Statement on Poverty (2001), Although human rights are not
a panacea, they can help to equalize the distribution and
exercise of power within and between societies.6
8] Human rights and poverty are therefore interrelated.
Poverty and human rights are not part of the same definition
6. See the Statement on Poverty by the UN Committee on Economic, Social and Cultural
Rights to the 3rd UN Conference on the Least Developed Countries of 2001, para 6.
Available at: www.unctad.org/conference. See document E/C.12/2001/10 Poverty and
the International Covenant on Economic, Social and Cultural Rights.
16
Chapter I
but are elements of the same struggle: when fighting against

poverty and extreme poverty, we advance in human rights
protection and promotion and vice versa. Since human rights
deficits today are concentrated among the poor, this approach
no longer perceives poverty in terms of income or charity, but
instead in terms of deprivation of capabilities and lack of
empowerment and therefore as a denial and consequently a
violation of human rights.
9] The interdependence and indivisibility7 of all rights
are absolutely essential in the eradication of poverty.
Interdependency has two aspects: the synergy for the
individual between the protection of two different rights and
the requirement to balance these rights. Indivisibility also has
two meanings: it refers to the universality of human rights
that all human rights exist on the same footing and have the
same emphasis and that the state is required to implement
all human rights for all members of society and take into
account their expectations.8 Therefore, only indivisibility can
reinforce and legitimize universality.
10] In this context, with regard to the right to adequate
food, the UN Committee on ESC Rights stated: the right to
adequate food is indivisibly linked to the inherent dignity
of the human person and is indispensable for the fulfilment
of other human rights. It is also inseparable from social
justice, requiring the adoption of appropriate economic,
environmental and social policies, at both the national and
international levels, oriented to the eradication of poverty
and the fulfilment of all human rights for all.9 Combating
poverty thus requires holistic solutions, and ESC rights have
that potential to empower people and communities living in
poverty.
11] Applying the human rights perspective to poverty also
establishes a relationship between strategies to fight against
and reduce poverty and the overall framework of human rights
and consequent legal obligations and responsibilities. The
human rights framework offers poverty strategies a concrete
parameter for providing legal remedies and measuring state
compliance with international human rights obligations
12] In addition, a human rights-oriented policy will indicate
that States have to take into account the comprehensive
human rights framework whenever formulating a policy for
combating poverty. Indeed, the State would thus ensure that
obligations and responsibilities derived from the human rights
framework are inserted into the design, implementation and
evaluation/monitoring of public policies to fight poverty.
In this sense, fighting poverty becomes a goal of an overall
process, and the concrete results cannot be measured only by
7. See para. 5 of the Vienna Declaration.

8. See A. Eide, Interdependence and indivisibility of human rights, in Y. Donders and V.
Volodin (eds) Human Rights in Education, Science and Culture legal Developments and
Challenges, UNESCO 2007, pp. 1151.
9. See General Comment n12.
Chapter I
quantitative indicators. Thus, public policies in congruence

with human rights will be more sustainable, will respect the
principle of equal participation, and will be more inclusive
(for example, human rights assessment).
In the cases Kearney and Ors v. Bramalea Ltd and Ors, Board
of Inquiry, Ontario Human Rights Code, 2000 related to the
claims by three low-income women to whom access to available
rental housing was denied, the Ontario Human Rights Board
provided a decision on the basis of the concept of poverty as
an effective ground of discrimination. The Tribunal stated that
the regulation of the markets should be in accordance with
international human rights obligations, in particular to the
access to housing. The Tribunal stated clearly that it is not
permissible to governments to refuse to rent to low income
families.
In the case Campaign for Fiscal Equity v. State of New York et
al1 the State failed to devise and implement necessary reform of
the public school financing system. The public policy regarding
education was not fulfilled and the Court of New York ordered
that an additional appropriation of US$5.6 billion in annual
operating expenses be provided within four years to ensure that
the citys public school children will be given the opportunity to
obtain the sound basic education. He also ordered that US$9.2
billion in added funding for capital projects be provided over
five years. The decision was upheld on appeal, ordering the
legislature to provide New York City schools US$4.7 to US$5.63
billion in operating aid and US$9.2 billion in capital funding
by 1 April, 2006. The 2006 New York State Budget Agreement
makes significant strides towards securing the courts-ordered
reforms in relation to capital funding but budgets less than
one-tenth of what the courts required in terms of operating
aid increases.
1. 719 N.Y.S.2d 475.
13] Human rights provide a normative framework in which

vulnerable groups are empowered and recognized as
principal actors and subjects of law. They are not merely
perceived as victims. Empowerment of the poor develops
another dimension of poverty since empowerment is the
expansion of assets and capabilities of poor people to
participate in, negotiate with, influence, control, and hold
accountable institutions that affect their lives.10 In this
sense, the participation of the poor offers examples on
solving concrete cases of deprival of minimum goods, which
can in fact be translated into human rights violations.
14] Poor people become an active part of the design,
implementation, evaluation and monitoring of public
policies. They have also the right to participate in the lawmaking process, and should take part in propositions that
will define the strategy to fight against poverty. Participation
empowers their freedom to define or amend the norm or
policy that concerns them. Participation is therefore linked
to the enjoyment and indivisibility of human rights and
includes engaging in public debate and dialogue, as well as
10. D. Narayan (ed.) Empowerment and poverty reduction. A sourcebook, World Bank, 2002,
p. xviii, p. 235.
facilitating them with the necessary information and effective

opportunities to contribute.11
In the case Doctors for Life International v. The speaker of
the National Assembly and others,1 the Constitutional Court of
South Africa highlighted the important question of the role of
the community in the law-making process and stated that their
involvement enhances the civic dignity of those who participate
by enabling their voices to be heard and taken account of. It
promotes a spirit of democratic and pluralistic accommodation
calculated to produce laws that are likely to be widely accepted
and effective in practice [] participatory democracy is of
special importance to those who are relatively disempowered
in a country like ours where great disparities of wealth and
influence exist.2
1. CCT (12/05) [2006] BCLR 1399.
2. Op cit, para. 115.
a. Poverty at the UN system

15] Poverty has always been an issue on the human rights
agenda of the UN System. The preamble of the UDHR states
that all human beings should be free from misery and goes on
to establish poverty as a human rights issue. At the Vienna
World Conference the international community pointed out
that the existence of widespread extreme poverty inhibits
the full and effective enjoyment of human rights; its
immediate alleviation and eventual elimination must remain
a high priority for the international community.12 From this
moment, the fight against poverty became a primary goal for
the international community.
16] It is for this purpose that the UN Secretary General
has located the fight against poverty as one of the main
goals of the international agenda, and has endorsed the
multidimensional definition of poverty from a human rights
perspective. To this end, the UN System has developed a
framework to fight against poverty, in which poverty is
considered as a violation of human rights, and has further
endeavoured to make poverty, legal enforcement and social
inclusion main priorities.
17] Reminding the international community and the
UN Agencies of their duty to develop standards on the
related state obligations derived from the human rightsbased approach to poverty eradication, the international
community adopted in 2000 the United Nations Millennium
Declaration and defined the Millennium Development Goals
(MDGs), which identified the issue of extreme poverty as a
main objective: We will spare no effort to free our fellow
11. See J. Wrezinski, Culture et grande pauvret (Culture and Extreme Poverty), Paris,
Editions Quart Monde, 2004, p. 40. See also A. Wrezinski, Knowledge that leads to
action, in X. Godinot and Q. Wodon (eds) Participatory Approaches to Attacking Extreme
Poverty Cases Studies Led by the International Movement ATD Fourth World, World
Bank working paper n77, 2006 Available at: www.rcpla.org/pdfper cent20download/
Attackingper cent20Extremeper cent20Poverty.pdf.
12. Vienna Declaration and Programme of Action, Article 14.
17
Chapter I
men, women and children from the abject and dehumanizing

conditions of extreme poverty, to which more than a billion
of them are currently subjected. We are committed to making
the right to development a reality for everyone and to freeing
the entire human race from want. MDG n1 is to end poverty
and hunger.13
18] UN Resolution 63/142 (5 March 2009) expressly asked
UN Agencies to support national strategies by sharing best
practices in the area of poverty eradication and the legal
empowerment of the poor. With the view of strengthening
international cooperation towards attaining the MDGs,
the UN has launched two Decades for the Eradication of
Poverty: the first under UN Resolution A/62/267, entitled
Implementation of the First United Nations Decade for the
Eradication of Poverty (19972006), and the second under
UN Resolution A/63/190, entitled UN Second Decade for the
Eradication of Poverty 20092017 (which underlines how
setting up national plans based on tangible goals are decisive
steps towards giving poverty eradication due priority.14
19] In his report15 related to the Observance of the International
Day for the Eradication of Poverty, the Secretary-General
underlined the necessity of social mobilization and
emphasized that poverty is a violation of human rights:
The fact that poverty persists in many parts of the world
points not only to an inequitable distribution of economic,
social and political opportunities, but also to a violation of
human rights. Often the condition of living in poverty also
affects the ability of the most vulnerable and disadvantaged
individuals, families and groups to defend their rights and
responsibilities. The violation of human rights is thus both
a cause and a consequence of poverty. People living in
poverty are, by their condition, disempowered and excluded
from society, and their capacity to secure their own rights is
extremely limited by their situation.16
20] Although the ICESCR which recalls the UDHR does
not explicitly mention the word poverty, it states that the
enjoyment of ESC rights is a precondition to freedom and
dignity. For this reason, it underlines the indivisibility of all
human rights and its connectivity and effects with regard to
poverty eradication.
21] This approach to poverty as a violation of human rights
13. See the UN Campaign to End Poverty by 2015 at www.endpoverty2015.org. The campaign
focuses on achieving the eight MDGs by 2015.
14. For an overall understanding of the evolution of UN Resolutions and reports on poverty
and their relation to human rights, see the documents: A/RES/47/196 of 1992 and
A/RES/28/183 of 1993 on the observance of an international day for the eradication
of poverty; A/RES/52/134 of 1998 on international cooperation in the field of human
rights. See also Human Rights Commission Resolution 1996/23 adopting the Final Report
on Human Rights and Extreme Poverty, by the Special Rapporteur, Leandro Despouy (E/
CN.4/Sub.2/1996/13) and resolution 2005/16 of 14 April 2005; as wll as the reports of
the independent experts on the question of human rights and extreme poverty, Ms. Lizin
and Mr. Sengupta (in particular E/CN.4/2004/43, E/CN.4/2005/49 and E/CN.4/2006/43)
and OHCHR, Principles and Guidelines for a Human Rights Approach to Poverty Reduction
Strategies, among others.
15. Document A/61/308 paras 416 available at: www.atd-fourthworld.org/IMG/pdf/
Report_English_SG_Annan_Celebration_17oct-A61308EN.pdf.
16. Op.cit para. 6.
18
has been increasingly developed during recent years by the

Committee on Economic, Social and Cultural Rights, which
has endorsed the multi-dimensional definition of poverty
from a human rights perspective and has provided guidance
and developed standards in its General Comments, focusing
on the concrete obligations of Member States to act in the
case of alleged situations of deprivation.17
22] The Committee defines poverty18 as a human condition
characterized by sustained or chronic deprivation of the
resources, capabilities, choices, security and power necessary
for the enjoyment of an adequate standard of living and
other civil, cultural, economic, political and social rights.19 In
short, in the Committees view, poverty constitutes a denial
of human rights.20 UNESCO has taken this one step further,
stating that poverty is a violation of human rights and, as
such, must be considered illegal, according to international
law.
23] Finally, at the regional level, the revised European Social
Charter of 1996, which prescribes in Article 30 a right to
protection against poverty and social exclusion, is an
important step towards the concrete normatization of poverty
as a human right, and concretely urges States parties to take
measures within the framework of an overall and co-ordinated
approach to promote the effective access of persons who live
or risk living in a situation of social exclusion or poverty, as
well as their families, to, in particular, employment, housing,
training, education, culture and social and medical assistance.
It is important to emphasize that the revised European Social
Charter includes the right to protection against poverty in
Part II of the Charter, which presents a list of ESC rights and
the correlated obligations for their full realization.
b. A model of law to fight against poverty

24] A proposal to draft a model law to combat poverty,
including the international obligations that should be
respected by States, has been advanced at the national level.
Indeed, on the basis of the experiences in the UN, some
countries have seen in this scheme a sort of normatization
of the fight against poverty.21
25] Examples of concrete normatization include the model law
for combatting discrimination, or the UNAIDS model to fight
against HIV-AIDS, which have inspired the creation of models
of law in order to guide parliamentarians in the eradication
of poverty. With regard to the issue of HIV-AIDS, for example,
17. UNESCO has developed several publications in relation to those approaches. All the articles
are available at: http://portal.unesco.org/shs/fr/ev.php-URL_ID=5149&URL_DO=DO_
TOPIC&URL_SECTION=-465.html. See also the publication Freedom from Poverty as a Human
Right (Vols I to IV), which develop the multidimensional dimensions of poverty.
18. UNESCO Consultation, supra note 7, at 2.
19. CESCR, Statement on Poverty, supra note 40, 8.
20. Ibid. at 1.
21. See elaboration of norms, document of the International Centre on Human Rights Policy
www.ichrp.org/files/reports/31/120b_report_en.pdf.
Chapter I
UNAIDS and OHCHR have published International Guidelines

on HIV and Human Rights,22 which aim to improve the
capacity for multi-sectoral coordination and accountability
of governments, give support to law reforms, empower the
marginalized groups, and increase the participation of the
wider community in the fight against HIV-AIDS. This model
has inspired national initiatives in the fight against HIV-AIDS
and notably the elaboration of national laws in Benin, Togo,
Mali, Sierra Leone and Niger among others, following the
standards of UNAIDS proposals.23
26] The Committee of ESC rights has advanced the core
elements to be inserted in relation to the elaboration of a
framework law on the right to food and the right to health.
In General Comment n12 related to the right to adequate
food, the Committee has stated that states should consider
the adoption of a framework law as a major instrument in the
implementation of the national strategy concerning the right
to food. In this sense, the Committee has even defined the
elements or guidelines of the framework law: (1) provisions
on its purposes; (2) targets or goals to be achieved and
timeframe to be set for the achievement of the targets; and
(3) means to achieve the goals. It highlights the importance
of collaboration with civil society and the private sector to
achieving this, as well as with international organizations
in order to move the processes forward. The chapter of
this manual related to the right to adequate food provides
additional information on this issue.
27] The same request is made in relation to the right to
health. The Committee asks the States to consider adopting a
framework law to operationalize their right to health national
strategy. The Framework law should establish national
mechanisms for monitoring the implementation of national
health strategies and plans of actions.24 The Committee also
defines the core elements of this framework law as: (1) targets
to be achieved; (2) time framework; (3) means to achieve
health benchmarks; (4) collaboration with civil society; (5)
institutional responsibility; and (6) recourse procedures.
States are also tied to monitoring the implementation of the
right and to identify obstacles that impede respect of their
obligations.
c. Bill 112 of Quebec25

28] Quebec has undertaken a unique, collective and participatory
effort in creating the Law to Fight Poverty and Social Exclusion
(Bill 112), thanks to the initiative of the Quebec Federation of
Women Bread and Roses March, on the occasion of the March of
Bread and Roses, June 1995. The law has been drafted from the
bottom up, stemming from an initiative of the large community
of NGOs and pluralistic social actors. Bill 112 intervenes on the
causes of poverty rather than its effects.
29] The Law creates: (1) a national strategy to combat social
exclusion, (2) a fund to support social initiatives; (3) an
observatory to monitor the reduction of poverty; and (4) an
advisory committee on the prevention of poverty and social
exclusion.
30] In addition, it identifies five actions areas: (1) promotion
of access to education and support of capacity-building
and skill development; (2) improvement of incomes, work
opportunities and individual assets, and expansion of social
housing; (3) improvement of access to work and employment;
(4) greater opportunities for the involvement of all social
actors through local development; and (5) development
of an institutional framework of information, evaluation,
accountability, participation and coherence among all levels
of intervention. Bill 112 institutionalizes the fight against
poverty as a priority within the legal framework, as well as
in public policies.
Campaign to translate the MDGs into a model law for

poverty eradication
The Millennium Development Goals a commitment of the
international community have become the core instrument in
the fight against poverty. They also form the basis of national
poverty reduction strategies. Despite all efforts, hopes of
attaining the target of reducing extreme poverty by half in 2015
are dwindling fast. Poverty continues to increase year after
year. According to the IMF/World Bank Global Monitoring Report
2009, more than 50 million more people are projected to
be in poverty in 2009. The food, energy and financial crises,
and the impacts of climate change, conflict and other forms of
internal turbulence weigh heavily on the living conditions of
vulnerable unprotected populations. Women and children are
affected most: legalizing the fight against poverty at the
national level has today become an ethical imperative.
Organization ACECI has launched a campaign in order to
translate MDGs into rights titled Translating MDGs into a model
law on poverty reduction.
22. See the consolidated report of 2006 at www2.ohchr.org/english/issues/hiv/docs/

consolidated_guidelines.pdf.
23. Benin: law 2005-31 of 2006; Togo: Law 2005-012; Mali: Law 06-28 of 29 June 2008;
Sierra Leone: Law 2007; Niger: law 2007-08, 30 April 2007.
24. See General Comment n 14 para. 56.
25. For more information on the law see: www2.publicationsduquebec.gouv.qc.ca/

dynamicSearch/telecharge.php?type=5&file=2002C61A.pdf and A. Nol, Background
paper: A Law against poverty: Quebecs new approach to combating poverty and social
exclusion, Canadian Policy Research Networks Family network December 2002.
Available at: www.pauvrete.qc.ca/IMG/pdf/Noel-A_Law_Against_Poverty.pdf.
19
[Campaign to translate the MDGs into a model law for poverty

eradication]
The campaign is built on a human rights approach to
guaranteeing minimum development for every human being
(regarding satisfaction of vital needs) in conformity with
the 1949 Universal Declaration of Human Rights, the 1966
International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural rights,
and is mounted by a consortium of north-south NGOs, and
women movements in particular.
The human-rights approach draws the attention of national and
international, private and public actors to the fact that nonapplication of the International Covenant on Economic, Social
and Cultural amounts to a negation of human rights, and is
synonymous to a violation of human dignity.
The model law on poverty reduction will form a source of
inspiration for countries who wish to adapt it to the specificities
of their national context, in a similar way as occurred with the
2004 model law on STD/HIV/AIDS in West and Central Africa.
This poverty reduction law will be the fruit of an inclusive
participatory process (SCOs, parliaments and governments, with
the support of international actors). It is not limited to MDGs
or by the 2015 deadline. It includes:
the notion of poverty as a human-rights violation
the right of each country to determine its own development
path
MDGs adapted to the reality of each country, compensating
for present gaps in the MDGs (e.g. production capacities and
job creation)
minimum human development as a right of every person, and
ways to guarantee it
mechanisms of impoverishment, and ways to neutralize them
accountability for all development actors with respect to the
population
the principles of the Paris Declaration: ownership,
harmonization, alignment, results-based management and
mutual accountability
the conception, implementation and follow-up procedures
for action plans derived from the poverty reduction law
the origins of the means necessary for the laws implementation
the composition and functioning rules of an inclusive body
designed for the monitoring and evaluation of the poverty
reduction law and supervision of any future adjustments.
For more information or to support the campaign: visit
www.aceci.org or contact Ginette Karirekinyana, General
Director, ACECI at: info@aceci.org.
d. Cash transfer programmes as social inclusive

policies
31] In recent years, a number of other strategies to combat
poverty with a direct impact on the realization of human
rights have been developed. These initiatives are called Cash
Transfers Programmes (CTPs) and consist of a direct cash
transfer to increase the income of poor households.26 CTPs
provide the financial means to facilitate access to basic goods
26. F. Ariel and S. Norber, Conditional cash transfers: reducing present and future poverty,
World Bank Policy Research Report, 2009.
20
Chapter I
such as food, housing or education, for the most vulnerable.

The UN Independent Expert on the question of human rights
and extreme poverty emphasized the fact that CTPs have been
identified as effective tools for poverty eradication due to
their capacity to reduce economic inequalities and break the
intergenerational transmission of poverty.27
32] CTPs have been developed today in more than thirty
countries, especially in South Asia, Latin America and Africa,
and have proved to have a substantial impact on supporting
families, particularly those with children, by providing food,
access to health and sustainable education.28 Concrete
examples of incremental increases in income and reductions in
poverty have been demonstrated in Brazil through the Bolsa
Familia Programme, Zambia, Malawi, Mozambique, Namibia
and China.29 As for example, studies have demonstrated that
in the absence of CTPs provided through the Bolsa Familia
Programme, poverty in Brazilian households would increase
by 5.3 per cent.30 The direct effect of CTPs is thought to
combat short-term poverty.
Brazilian Programme Brazil End Poverty 2011: an example

of social inclusive policy
Brasil Sem Miseria (Brazil End Poverty) is a National Poverty
Alleviation Programme recently launched by the Brazilian
Government. Its aim is to inject US$13 millions until 2014 to
empower the poorest Brazilian households to access health,
education, employment opportunities, electricity, safe drinking
water and sanitation, productive inclusion and other economic,
social and cultural rights.
The programme aims to lift 16 million people out of poverty.
The beneficiaries have been identified by a 2010 national
census. People who have not benefited from the Bolsa Familia
Cash Transfer Programme will be registered under the Brazil End
Poverty programme.
33] Various forms of Cash Transfers have been implemented by

different countries. The so-called Conditional Cash Transfers
Programmes (CCTPs) consist of direct cash transfers, but the
27. See report of the independent expert on the question of human rights and extreme
poverty, Ms Magdalena Seplveda Carmona, Promotion and protection of all human rights,
civil, political, economic, social and cultural rights, including the right to development,
document A/HRC/11/9 27 March 2009. See also Samson, Tackling Poverty with Social
Transfers, 2007.
28. See, for example, K. Chapman, Using social transfers to scale up equitable access to
education and health services, London, DFID Policy Division, Scaling up Services Team,
2006; N. Schady and M. Caridad Araujo, Cash transfers, conditions, school enrolment, and
child work: Evidence from a randomized experiment in Ecuador, 2006.
29. Brazil, through Bolsa de Familia (Family Support Programme), for example, has attained
the first MDG. The Kalomo Project in Zambia has reached a target group of 200,000
households who have received an amount of 30,000 ZMK and another 10,000 ZMK per
child. In Malawi, the Mchinji pilot social cash transfer scheme introduced in 2006 reaches
11,170 beneficiaries and focuses on children, and orphans in particular. It supports the
process of elaborating a national social protection policy for Malawi. The goal is to
link the social cash transfer scheme to ongoing social and economic programmes and
services, and complement the scheme with programmes that target poor households
which are not labour constrained. In China, the DI Bao (Minimum Income Guarantee
Scheme) was introduced in 1999 across the country, reaching 22 million people and
costing 1 per cent of GDP. For more information, see: R Knnemann and R. Leonhard,
A Human Rights View of Social Cash Transfers for Achieving the Millennium Development
Goals, Brot fur Die Welt, EED, Fian International and Medico International, 2008.
30. See, for example, the studies of A. Barrientos and R. Holmes, Social Assistance in
Developing Countries Database, Version 2.0, IDS, University of Sussex, March 2006.
Chapter I
[Brazilian Programme Brazil End Poverty 2011: an example of

social inclusive policy]
The basis of the programme is the creation of social inclusion
in order to make growth sustainable at the national and
regional level. For this purpose, the Programme will provide
holistic responses to poverty by supporting training capacities
and youth entrepreneurship with targeted action provided by
food, nutrition and housing centres.
they integrate a human-rights approach. Their success depends

largely on political will, administrative capacity and the
availability of financial resources. In addition, it is crucial that
local actors support the monitoring and transparency of those
strategies. NGOs can play a huge role in their implementation
and accountability. For example, the pilot above mentioned
experience of the Malawi CTP31 provided a good example of the
crucial role played by NGOs in supporting food aid.32
The programme will concretely:

1. Promote access to economic, social and cultural rights by
providing subsidies
2. Provide infrastructure for the provision of social services
3. Provide capacity building and training sessions in order to
increase participation of the most vulnerable
4. Support equality by breaking generational exclusion and
empower female participation.
In order to link the families and the government, 7,000
Centres for Social Assistance have been created in each
municipality in order to support the identification of needs, as
well as the administration of funds.
The role of NGOs will be crucial in providing data and
undertaking research on existing gaps and the needs of
marginalized populations.
For more information, see: www.brasilsemmiseria.gov.co
beneficiaries commit themselves to investing, in return, in child

education, provision of food or health services (especially for
HIV-AIDS), and gender empowerment, for example. Investment
in these ESC rights provides a decent floor for poor persons and
allows them to progressively access educational systems and
healthcare services. CCTPs are a source of tacit obligations for
beneficiaries to access ESC rights.
34] Gender approaches to CTPs have also been important to
development. Examples demonstrate how CTPs have helped
empower women by providing autonomy and equilibrating
household members, especially in Asia and Africa. In Mexico,
for example, women have reported having greater control
over household resources as a result of the Mexican Progresa
Initiative.
35] General responses show that CTPs remain efficient in
combating short-term poverty and elevating the standard
of living to adequate and decent levels. From a long-term
perspective, CTPs are not meant to work autonomously and are
insufficient to replace adequate services and targeted public
policies. As such, they do not ensure long-term empowerment of
the poor. Therefore, CTPs should undoubtedly be accompanied
by mechanisms aimed at supporting long-term access to
services and providing a common floor for the enjoyment of
human rights for vulnerable persons. In this way, long-term
sustainable CTPs could be a tool for empowerment and should
also work to ensure the participation of a wide list of actors.
3. Translating MDGs into rights

37] By adopting the Millennium Declaration, 191 UN Members
agreed to adopt the Millennium Developments Goals (MDGs),
which include targets to be achieved by 2015. Reminding the
international community and the UN Agencies of their duty to
develop standards related to states obligations, derived from
the human rights-based approach to poverty eradication, the
international community defined the first one of these goals
as reducing poverty by one half by 2015, and identified the
issue of extreme poverty as a main objective: We will spare
no effort to free our fellow men, women and children from
the abject and dehumanizing conditions of extreme poverty, to
which more than a billion of them are currently subjected. We
are committed to making the right to development a reality for
everyone and to freeing the entire human race from want. MDG
1 is to end poverty and hunger.33
38] To reinforce initiatives to attain the MDGs, the second
Decade for the Eradication of Poverty 20082017 issued a
demand for an integrated strategy to support national activities
and actions to eradicate poverty, through the implementation
of holistic policies with broad social protection impact.
International cooperation aims to reinforce national strategies
with a view to advancing the progressive realization of human
rights and the attainment of the MDGs.
39] However, the MDGs would be achieved if we dont translate
them into rights and therefore into actionable interventions
with strong local impact. Human rights and MDGs both have
a minimum standard which policies and programmes can be
evaluated against. They should both be integrated at the
beginning of the policy or programme design stage. Thus,
linking MDGs to human rights will prevent MDGs from being
merely optional and will help them to:
(1) better address the question of the most vulnerable groups
of society
(2) include the notions of state obligations and progressive
realization, and
31. www.ipc-undp.org/publications/cct/africa/PilotingMalawiCT.pdf.
36] For these reasons, CTPs are most effective when

complemented by other social protection programmes and when
32. Op. cit

33. See the UN Campaign to End Poverty by 2015 at www.endpoverty2015.org. The campaign
focuses on achieving the eight MDGs by 2015.
21
Chapter I: Poverty and human rights
Translating Millennium Development Goals (MDGs) into rights

Goals
Targets
Rights
Related
articles
MDG 1.
1.a. Reduce by half the proportion of people living on less than

a dollar a day
Right to attain a
decent standard of
living
Right to social security
1.b. Achieve full and productive employment and decent work

for all, including women and young people
Right to work
Art. 22 and 22 of the

UDHR
Art. 6 ICESCR
Art. 25 UDHR
Art. 11 ICESCR
1.c. Reduce by half the proportion of people who suffer from hunger
Right to food
2. Ensure that all boys and girls complete a full course of

primary schooling
Right to education
UDHR Art. 25(1)

Arts 13, 14 ICESCR
Art. 28(1) a CRC
Art. 10 CEDAW
Art. 5(e) ICERD
3. Eliminate gender disparity in primary and secondary

education preferably by 2005, and at all levels by 2015
Right to equality
Right to education
UDHR Art. 25(1)

Arts 13, 14 ICESCR
Art. 28(1)a CRC
Art. 10 CEDAW
Art. 5(e) ICERD
4. Reduce by two-thirds the mortality rate among children under

five
Right to life
UDHR Art. 25 (1)

Art. 6 and 24 (2)a CRC
Art. 12(2)a ICESCR
5.a. Reduce by three-quarters the maternal mortality ratio
Right to life
Art.
Art.
Art.
Art.
Art.
25 UDHR
12 ICESCR
24 CRC
12 CEDAW
5(e)(iv) ICERD
25 UDHR
12 ICESCR
24 CRC
12 CEDAW
5(e)(iv) ICERD
Eradicate
extreme poverty
and hunger
MDG 2.
Achieve
universal primary
education
MDG 3.
Promote gender
equality and
empower women
MDG 4.
Reduce child
mortality
MDG 5.
Improve maternal 5.b. Achieve, by 2015, universal access to reproductive health

health
The right to the

highest attainable
standard of health
MDG 6.
6.a. Halt and begin to reverse the spread of HIV/AIDS
Combat HIV/
AIDS, malaria
and other
diseases
6.b. Achieve, by 2010, universal access to HIV/AIDS for all

those who need it
The right to the

highest attainable
standard of health
Art.
Art.
Art.
Art.
Art.
MDG 7.
7.a. Integrate the principles of sustainable development into

country policies and programmes; reverse loss of environmental
resources
Right to
environmental health
Art. 12 ICESCR
Art. 14 CRC
Ensure
environmental
sustainability
MDG 8.
Develop a global
partnership for
development
6.c. Halt and begin to reverse the incidence of malaria and

other major diseases
7.b. Reduce biodiversity loss, achieving, by 2010, a significant

reduction in the rate of loss
7.c. Reduce by half the proportion of people without sustainable
access to safe drinking water and basic sanitation
Right to safe drinking

water and sanitation
7.d. Achieve significant improvement in lives of at least 100

million slum dwellers, by 2020
Right to adequate
housing
8.a. Develop further an open, rule-based, predictable, nondiscriminatory trading and financial system
Right to development
Art. 2 (1) , 11 (1), 15

(4), 22 and 23 ICESCR
8.b. Address the special needs of the least developed countries
Art. 4 , 24 (4) and 28

(3) CRC
8.c. Address the special needs of landlocked developing

countries and small island developing States (through the
Programme of Action for the Sustainable Development of Small
Island Developing States and the outcome of the twenty-second
special session of the General Assembly)
8.d. Deal comprehensively with the debt problems of developing
countries through national and international measures in order
to make debt sustainable in the long term
The right to the

highest attainable
standard of health
8.e. In cooperation with pharmaceutical companies, provide

access to affordable essential drugs in developing countries
Right to enjoy the

benefits of scientific
progress and its
implications
8.f. In cooperation with private sector, make available the

benefits of new technologies
Art. 22 and 28 UDHR
Source: table created by the author on the basis of the information obtained at the website: www.un.org/millenniumgoals/
22
Chapter I
(3) promote an interdisciplinary approach to programming by

integrating the interdependent nature of human rights.
4. Mainstreaming gender into

poverty agendas
40] Gender issues are today found at the heart of development,
social, political and economic issues, as a matter of urgency.
Women remain the poorest segment among the poor. It is
estimated that women represent around 70 per cent of the
worlds poor.34 Of the 113 million children not in primary
schools 60 per cent are girls. More than 60 per cent of the
worlds estimated 876 million illiterate adults are women, and
among refugees 80 per cent are women. In addition, their
access to work opportunities and posts with responsibilities
are limited.
41] A focus on women rights has grown significantly, in part
as a result of the 1995 Beijing World Conference on Women
and its Platform for Action, and the Outcome Document of
the special session of the General Assembly in Beijing+5.
The Beijing Declaration and Platform for Action developed
the notion of gender mainstreaming, highlighting the need
to take gender perspectives into account in all social, legal
and political frameworks, whenever a policy, strategy, plan
or norm is formulated or implemented. As a result gender
mainstreaming has been implemented in diverse initiatives
around the world, but unfortunately this has not been enough
to overcome persistent gender inequalities worldwide.
42] Millennium Development Goal 3 concerns the promotion
of gender equality and the empowerment of women as a tool
to combat poverty. Indeed, womens public participation is
a human rights issue and it empowers their decision-making
processes with direct effect in the communities and their
families.
43] Both Article 3 of the ICESCR and ICCPR banish any kind of
discrimination against women. In particular, the Convention
on the Elimination of All forms of Discrimination against
Women (CEDAW) proclaims the equality of rights between
men and women in all social, economic, political and legal
spheres and encourage actions to modify patterns that
create stereotypes and impede equality between men and
women. The Convention appeals for equal access in education
(Art. 10), employment (Art. 11), health services (Art. 12)
and economic and social benefits (Art. 13) with special
attention on rural women (Art. 14). The Optional Protocol
to the Convention allows women victims to submit claims of
violations of rights protected under the Convention.
34. Data and information from UNIFEM.
44] Trafficking and prostitution, violence and reproductive

rights remain the major concerns in the protection of women.
The UN Convention for the Suppression of the Traffic in
Persons and of the Exploitation of the Prostitution of Others,
and several ILO Conventions contain specific provisions
relating to these issues. At the regional level, the Optional
Protocol to the African Charter on Human and Peoples Rights
on the Rights of Women in Africa mentions specific provisions
against harmful practices, such as genital mutilation, and the
Inter-American Convention on the Prevention, Punishment
and Eradication of Violence against Women (Convention
Belm Do Par) contains provisions on violence against
women, among many others.
Gender approach to access to justice

In order to provide visibility for gender policy initiatives
and adjudication in the judicial system, the Inter-American
Bank has launched a pilot project in Costa Rica, aimed at
developing a programme on gender awareness-raising activities
and supporting information to monitor and evaluate nondiscriminatory practices in the judicial system. A training
model on gender issues is been developed as well a model to
disseminate court decisions related to gender issues.
In Colombia, a project called Casas de Justicia (Justice Houses)
promotes awareness of judicial decisions and legal support for
women in situations of poverty by providing them with access
to justice. The creation of Casas de Justicia has increased the
accessibility of justice services for urban and rural populations;
promoted relationships between public defenders, pro bono
attorneys, police and judges; and promoted the access of
marginalized Colombians, especially women and displaced
population, to a range of remedies, ranging from title law to
domestic law.
For more information, please see: www.mij.gov.co/econtent/
library/documents/DocNewsNo1775DocumentNo1770.PDF
5. Prioritizing vulnerable
groups
45] Vulnerable social groups are at the center of the strategy
to eradicate poverty. The Committee has repeatedly announced
which groups of society should be considered as marginalized
and vulnerable. Some are discriminated against because of
the historical and structural role of societies, some because of
their physical, mental or sexual condition. Those groups are:
children, older people, people with disabilities, people living
with HIV-AIDS, migrants, displaced persons, indigenous people
and lesbians, gays, bisexual and transgender people (LGBT).
46] Youth is presented here as a group that merits special
attention as in recent years this age group has been
particularly affected by high levels of unemployment, growing
urban poverty, forced migration, family disintegration and
23
deteriorating health conditions. Among other challenging

factors, the population density in cities accelerates the
transmission of infections to which children and young people
are especially vulnerable, including HIV/AIDS. Research also
shows that young people are particularly affected by insecurity
since this age group holds the highest level of involvement
in violence situations, both as agents and as victims. When
deprived of access to basic healthcare, education and job
opportunities, among other things, marginalized young people
are often stigmatized when trying to be part of society.
a. Children
47] Children need special care and protection because of their
particular vulnerability. The 1989 Convention on the Rights of
the Child (CRC) protects his/her right to life, survival and
development under the principles of protection, provision
and participation. By applying the most favourable
conditions clause, the Convention emphasizes the necessity
of applying the most favourable conditions clause, whenever
a clause of the CRC and a national provision are contravened.
48] Special provisions concerning economic, social and
cultural rights are mentioned along with the right to health,
clean water, sanitation, education, food, the prohibition of
child labour and child abuse, and the freedom of children
to express their opinions and to have a say in things that
concern their life. The Optional Protocols to the Convention
namely the Optional Protocol on the involvement of children
in armed conflict35 and the Optional Protocol on the sale of
children, child prostitution and child pornography provide
special protection against the worst forms of exploitation and
contain provisions on street children, sexual exploitation,
and children recruited by armed forces or belligerent
organizations. The Committee on the Rights of the Child and
the Human Rights Committee supervise both the respect of
the obligations related to the Convention and its Protocols.
49] At the regional level, the African Charter on the Rights
and Welfare of the Child, the Inter-American Conventions on
Conflicts of Laws concerning the Adoptions of Minors and on
the International Return of Children, and the European Social
Charter reinforce protection.
b. Youth
50] The United Nations define youth as persons between the
ages of 15 and 24. Although young people represent more
than 18% of the worlds population and perform a crucial role
as agents of change, most countries today have no public
policy relating specifically to youth. Furthermore, even for
35. Adopted and opened for signature, ratification and accession by General Assembly
resolution A/RES/54/263 of 25 May 2000 and entered into force on 12 February 2002.
24
Chapter I
states that have developed such new forms of legislation,

too often it is piecemeal and lacks a comprehensive approach
thereby impeding participatory processes to integrate
challenges faced by the younger generation, as well as
possible solutions.
51] As young people today are particularly vulnerable to
current social and economic challenges, they are now more
present on the agendas of planners and decision-makers
and albeit still scarcely in public policy outlines. In
this context, UNESCO has developed a set of guidelines
covering policy formulation, implementation and monitoring
and evaluation on national youth policies and programmes
without interfering with state priorities.The main priorities for
confronting the challenges of social change are: preventing
violence, inclusion of youth with disabilities, and fostering
participation of young women and men. UNESCO has also
developed initiatives including the Youth Development Index,
an indicator used to measure the development of countries:
the per capita GDP applied to youth. This Index highlights
specificities within this age group according to the presence
of youths in socially defined activities (work and school).
52] This manual focuses on youth as a vulnerable group
whenever a violation occurs to a young people due to its lack
of accessing a right. Youth are therefore considered as subject
of vulnerability caused by a lack of access to resources, for
example, or from dependency on public services, which may
be the situation for young disabled people. Typically, what
all these groups have in common is a lack of effective public
voice and mitigation options, such as a dependable network
of support or sufficient fungible assets.
c. Older people
53] Older people often suffer limitations to their economic,
social and cultural rights and related discrimination. However,
no international human rights instrument is dedicated to older
persons. Despite this, several instruments mention the necessity
of avoiding any kind of discrimination against older people and
the need to promote their participation, development, care and
increase their social welfare. For example, the UN Convention
on the Rights of Persons with Disabilities (CRPD) specifically
mentions the necessity for States Parties to adopt immediate,
effective and appropriate measures to combat stereotypes on
the base of age (Art. 8.1b), and other instruments such as
the African Charter prescribes the necessity of protecting their
moral and physical needs (Art. 18).
d. People with disabilities

54] People with disabilities suffer multiple forms of
discrimination and need to be empowered in order to make
Chapter I
social integration a reality. The recent UN Convention on the

Rights of People with Disabilities (CRPD)36 contains a list of
principles that aim to provide specific responses in relation
to their rights to transportation, housing, health care and
participation in public life.
55] Indeed, Article 3 of the Convention reaffirms the respect
for inherent dignity, individual autonomy, non-discrimination,
equality of opportunity and accessibility among others as
guiding principles of the Convention, and Articles 6 and 7
mention specifically women and children with disabilities.
Article 25 confirms the necessity of providing health care
on the basis of free and informed consent and equality with
others.
56] At the regional level, the African Charter on Human
and Peoples Rights mentions handicapped children as
groups exposed to specific vulnerability. The 1999 InterAmerican Convention on the Elimination of All Forms of
Discrimination against Persons with Disabilities recalls the
need to ensure quality of services for disabled people as
well as their independence. Specific instruments such as ILO
159 of 1983 and Recommendation (n168) and the United
Nations Convention on the Rights of Persons with Disabilities
concerning Vocational Rehabilitation and Employment,
provide guidelines for policy on vocational rehabilitation
in order to promote employment opportunities. General
Comment n5 of the Committee on ESC Rights is dedicated to
people with disabilities.
e. People living with HIV-AIDS

57] Despite the absence of an international binding instrument
dealing with HIV-AIDS, most of the international human
rights instruments provide special protection fot people living
with HIV-AIDS. Indeed, rates of HIV-AIDS infection are still
on the rise in many countries in sub-Saharan Africa and some
regions of Asia. Due to the discrimination they encounter,
people with HIV-AIDS should be empowered in their access
to health care protection, housing and education. Women are
at greater risk of infection due to their historical cultural
subordination and their sexual and reproductive rights.
f. Migrants
58] International migration has become an intrinsic feature
of globalization. Migrants live in states where they are not
nationals, and are confronted with cultural, political and
social changes that require adaption to new values and
practices. This adaptation can often be difficult and lead to
exclusion and discrimination. Moreover, their limited access
to employment, education, health care and housing, among
36. Adopted by General Assembly resolution A/RES/61/106, 13 December, 2006.
other rights, places them in a situation of vulnerability.

59] Poverty is sometimes the reason for migration, but is
also an outcome of it. There is therefore a pressing need to
recognize and implement the human rights of migrants and
equality of treatment, and to ensure their recognition not
only as workers, but as human beings with the same rights.
60] The 2003 International Convention on the Protection
of the Rights of All Migrant Workers and Members of Their
Families aims to guarantee economic, social and cultural
rights as well as civil and political rights, with a view to
ensuring access to social goods in terms of equality and
participation. Migrants are asked to retain contact with their
country of origin and to return and participate in public life.
In the case of irregular migrants, protection should also be
given despite their undocumented situation.
g. Displaced people
61] Displaced people are people who have been obliged to
leave their homes due to natural, political or social events
but have remained inside the border. Due to their forced
displacement, they encounter discrimination and intolerance
as well as exclusion from economic and social development
processes. Therefore, States are obliged to provide the
same treatment as is accorded to nationals, and especially
in accessing human rights such as education, health care
and social security and employment. The general framework
of protection is given by the 1949 Geneva Convention (IV)
relative to the Protection of Civilian Persons in Time of War.
62] Refugees are also considered as displaced people, but with
the difference that they have crossed borders and encounter,
for the same reasons, exclusion. The 1951 Convention Relating
to the Status of Refugees, the 1967 Protocol Relating to the
Status of Refugees and the Resolution 2198 (XXI) adopted
by the United Nations General Assembly constitute the main
treaty bodies related to refugees.
63] At the regional level, the Convention Governing the
Specific Aspects of Refugee Problems in Africa and the
Addis Ababa Document on Refugees and Forced Population
Displacements in Africa contain prescriptions to provide
financial, material and technical assistance, as well as access
to human rights such as food, water, shelter, sanitation and
health care. The 1984 Cartagena Declaration on Refugees37 as
well as the San Jos Declaration on Refugees and Displaced
Persons38 are non-binding instruments serving as sources of
guidance for the convergence between International Human
37. Adopted by the Colloquium on the International Protection of Refugees in Central

America, Mexico and Panama, held at Cartagena, Colombia from 1922 November
1984.
38. Adopted by the International Colloquium in Commemoration of the Tenth Anniversary of
the Cartagena Declaration on Refugees, San Jos, 5 December 1994.
25
Rights Law, International Humanitarian Law and International

Refugee Law. The Cartagena Declaration, for example, calls for
improving their self-sufficiency and integration into society as
well as the enjoyment of their economic, social and cultural
rights, while the San Jos Declaration reiterates the necessity
of designing programmes to facilitate local integration, the
issuance of essential documentation and the normalization of
their migratory status. The Declaration insists on including
gender-based criteria in the examination of claims for refugee
status.
h. Indigenous people
64] Indigenous people have historically been neglected and
marginalized. They are also confronted with challenges created
by globalization, markets dynamics and several violations of
their lands, economic resources and environment. It is therefore
necessary to promote human rights through culturally sensitive
approaches in order to preserve cultural diversity.
65] The first Convention on tribal groups, ILO 107 (1957),
which was revised and amended in 1989 by in ILO 169
Convention, defines tribal groups in its Article 1.1 as groups
whose social, cultural and economic conditions distinguish
them from other sections of the national community, and
whose status is regulated wholly or partially by their own
customs or traditions or by special laws or regulations. In
Chapter I
addition, the United Declaration on the Rights of Indigenous

Peoples, adopted in 2007, emphasizes the prohibition of any
kind of discrimination and stresses their right to maintain
their own institutions, cultures and traditions. States are
invited to promote their effective participation in all matters
that concern them.
i. Lesbians, gays, bisexual and transgender

people (LGBT)
66] The discrimination encountered by lesbians, gays,
bisexual and transgender people (LGBT) is often linked to
historic and religious reasons, and some countries have
failed in according them equal rights and liberties. In this
sense, the historic and recent UN Resolution A/HRC/17/L.9/
Rev. 1 (15 June 2011) on human rights, sexual orientation
and gender identity, marks the first step in recognition of
the multiple human rights violations faced by LGBT people
as a result of their sexual orientation, and constitutes a
major step in ensuring equality. The Resolution requests the
commission of a study listing and analysing the discriminatory
laws and practices and acts of violence against individuals
based on their sexual orientation and gender identity, in all
regions of the world. It also requests further elaboration
on how international human rights law can be used to end
violence and related human rights violations based on sexual
orientation and gender identity.
Exercises
1) What are the core contents of the notion of poverty?

2) Why is poverty a violation of human rights?
3) Does the 1948 Universal Declaration of Human Rights integrate all vulnerable groups by affirming in Article 1 that all
people are born free and equal in dignity and rights?
4) Do you agree that vulnerable groups should receive special treatment? Justify your answer.
5) Please provide examples of how human rights can be addressed in order to include a cultural approach. Is this contrary
to the principle of universalism of human rights? Justify your answer.
26
The role of justiciability in the

combat against poverty
27
1. Defining the concept of justiciability
28
2. National frameworks for justiciability of ESC rights
29
3. The role of judges in the advancement of ESC rights
31
4. Correlations between justiciability and social justice:
towards a transformative constitutionalism
a. Justiciability providing relief to people and setting the basis for nondiscrimination and recognition
b. Justiciability providing relief to the most vulnerable through the
redistribution of goods
c. Justiciability transforming the reality of special attention groups
34
5. What role for NGOs in advancing justiciability?
Chapter II
Chapter II:
Chapter II
UNESCO/Le Mignon Misato
Chapter II:
The role of
justiciability in
the combat against
poverty
The arguments presented here develop the idea that justiciability reinforces the progressive
realization of human rights. Justiciability provides relief by giving legal recognition to the rights
of the poor. It promotes the existence of ESC rights assessment within the legal hierarchy while
contributing to their realization. Other means contribute to the advancement of human rights
as the implementation of public policies by independent bodies and the advocacy action of
NGOs in their monitoring. So, justiciability is here taken as one of the necessary steps towards
implementation of State accountability. This chapter examines the common ground shared by the
concepts of social justice and justiciability, and explores how national and international litigation
have a concrete impact on the promotion of social justice building upon a broad definition of
justiciability that implies the real transformative potential of human rights.
1. Defining the concept of

justiciability
1] In the context of alleged violations of rights, justiciability
refers to legal enforcement on behalf of the victims, by way
of filing a claim before national judicial and quasi-judicial
and impartial legal claims mechanisms, with a view to
requesting a remedy or a redress of the alleged violation.1
Some consider justiciability as one of the phases in the
gradual development process of a right, with the first phase
of advancement corresponding to its idealization, the second
to its conceptualization, the third to its positivization, and
the last to its (full) realization.2 For others, since the courts
aim to provide a remedy to an alleged violation in a particular
case,3 justiciability responds to the claim that there is no
right without a remedy: that is, the right of a complainant to
present a petition and get a remedy in return.
1. See Introductory remarks, F. Coomans (ed) Justiciability of Economic, Social and Cultural
Rights: experiences from domestic systems, Intersentia, Antwerpen-Oxford, 2006, pp. 45.
See also, R. Gargarella, P. Domingo and T. Roux, (eds) Courts and Social Transformation
in New Democracies: an institutional voice for the poor? Ashgate, 2006.
2. See J. Donnelly, The West and economic rights, in S. Hertel and L. Minkel (eds) Economic
Rights: conceptual, measurement and policy issues, Cambridge University Press, 2006, pp.
4849.
3. See F. Viljoen, National legislation as a source of justiciable socio-economic rights, 6
ESR Review, N. 3, 2005, pp. 69; also see Y. Ghai and J. Cottrell, The role of the courts
in the protection of economic, social and cultural rights, Y. Ghai and J. Cottrell (eds),
Economic, Social and Cultural Rights in Practice, London: Interights, 2004.
2] The definition of justiciability has always been both

complex and problematic in terms of distinguishing the level
of realization of civil and political rights (CP) versus ESC
rights. In fact, the general assumption is that CP rights are
justiciable, while ESC rights are not. However, the empirical
evidence, consisting of numerous case laws dealing with ESC
rights in courts, shows that ESC rights have gained increasing
legal recognition, and in terms of adjudication are now on an
equal footing with CP rights. The justiciability of courts has
thus played a decisive role in equilibrating CP and ESC rights.
3] In developing the latter, it is important to distinguish
the two forms of implementation of legal standards:
implementation per se, and justiciability by adjudication. The
first is defined by law or by the constitutional provisions that
provide immediate or self-execution of ESC rights, as well as
direct access to courts; the second requires the development
of argumentative considerations by courts through
jurisprudence. Indeed, those two forms of implementation
have been clarified and developed by national courts, which
have shifted from a conservative to a more progressive level
of activism in the protection of ESC rights.
4] The CESCR therefore argues, in General Comment n 9
on domestic application of the Covenant, that there is
no right which cannot be considered to possess at least
27
some significant justiciable dimensions. The CESR clarifies

that it is important in this regard to distinguish between
justiciability (matters which are appropriately resolved by
the courts) and norms which are self-executing (capable
of being applied by courts without further elaboration).
The CESCR reaffirms that there is no Covenant right which
could not, in the great majority of systems, be considered to
possess at least some significant justiciable dimensions. The
Committee has affirmed that the Covenant norms must be
recognized in appropriate ways within domestic legal order,
appropriate means of redress or remedies must be available to
any aggrieved individual or groups and appropriate means of
ensuring governmental accountability must be put in place.4
2. National frameworks for

justiciability of ESC rights
5] It is today undeniable that adjudication of ESC rights
has matured, as confirmed by national experiences in
India, Colombia, the Philippines, Canada, and South Africa,
among many others. These comparable experiences have
demonstrated the crucial role of justiciability in setting
standards for empowerment and building a legal basis for the
attainment of social justice.
6] The Indian Constitution5 states that only the right to life,
the right to equality and the right to freedom of expression
are justiciable rights, defining these as self-executive rights
(justiciability per se). Nevertheless, a posteriori, developments
in justiciability appeared in the 1970s when the Indian
Supreme Court (Indian SC) linked the right to life6 to human
dignity, and defined an integrative theory in which the nature
of fundamentality should be attributed to all rights that are
linked to the right to life. The Indian SC states that the
right to life includes the right to live with human dignity
and all that goes with it.7 ESC rights have been included in
the Constitution under Directive Principles, which although
not justiciable, provide a guide for the Government on the
implementation of ESC rights. However, in recent revisions,
the court has used the Directive Principles to enlarge the
scope of ESC rights.8 The use of Public Interest Litigation
(PIL) has contributed to providing relief to people and to
Chapter II
creating policy that states must follow.9 The PIL has provided
broad access to justice and judicial redress to all persons or
class of persons that are in a position of poverty, vulnerability,
disability and exclusion in genera. Any member of public can
maintain an application for an appropriate direction, order or
writ in the Indian High Court.
7] Along similar lines, the justiciability of fundamental
rights was inscribed in the Colombian Constitution of
1991. The Constitution includes a list of fundamental rights,
and states that the majority of civil and political rights are
directly applicable and justiciable. However, the Constitution
has no clear provision on the enforcement of social rights.
Thus, developments in ESC rights as justiciable rights have
been ruled through adjudication provided by the Colombian
Constitutional Court (Colombian CC). Here, as in India,
the connexity10 of ESC rights with a fundamental right is
justiciable.
8] The Constitution of the Philippines of 1987 fixes the
terms of justiciability for the Supreme Court.11 Article VIII
states that in order for a right to be justiciable it first has to
pass an analysis of the nature of the controversy (the right
and the violation) and the capacity, legitimacy or interest
of the victim (locus standi). In the case of ESC rights, the
same test is applied. However, two provisions seem to be selfexecuting: the non-discrimination and the equal protection
clauses. The same Constitution also incorporates a Declaration
of Principles and State Policies including twenty-eight
sections that elaborate ESC rights, such as health, education,
social services and housing. Nevertheless, the justiciability
of ESC rights has been developed by jurisprudence. In several
cases (LLDA,12 Oposa,13 Taada14 and Kilosbayan),15 the
Philippines Court defined the meaning of justiciability, as
well as the role of courts in right-conferring statements and
policies, declaring that these basic rights need not even be
written in the Constitution for they are assumed to exist from
the inception of human kind.16 The Court has advocated for
the implementation of ESC rights through judicial and quasijudicial means.
9] In Canada, the Constitution Act of 1867 does not provide
any specific provision related to justiciability of human
rights. Yet, the Canadian Charter of Rights and Freedoms
9. See, in this chapter, the text box on the judicial enforcement of positive obligations.
4. General Comment n9, The domestic application of the Covenant: 03/12/1998.

E/C.12/1998/24, CESCR, para. 10.
5. Constitution of India of 1950.
6. Part III of the Indian Constitution of 1950 mentions the right to life, the right to
freedom of opinion and expression and the right to equality, and defines them as
fundamental. ESC rights are mentioned under Part IV, entitled Directive Principles of
State Policy and Fundamental Duties (DPSP) of the Constitution, including the right to
education and work. Those ESC rights, according to the DPSP, are not enforceable by
the courts, but the principles on which they are based are fundamental guidelines for
governance that the State is expected to apply in framing and passing laws.
10. The Connexity Doctrine has been developed by the Constitutional Court of Colombia
to enforce ESC rights, while assimilating them to fundamental rights, thus, enabling a
social right to be protected as fundamental.
11. Section I states: The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law. Judicial power includes the duty of the courts
of justice to settle actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
12. See Laguna Lake Development Authority (LLDA) v. Court of Appeals, GR n110120, 16
March, 1994.
13. See Oposa v. Factoran, 224, SCRA 792, 1993.
7. See Kesavananda Bharati v. State of Kerala 4 SCC 225, 1973; Maneka Gnadhi v. Union of
India, 1 SCC, 248, 1978; Municipal Council Ratlam vs. Vardhichand and others, AIR 1980
SC 622 and Bandhua Mukti Morcha vs. Union of India, 1984 SC 802.
14. See Taada v. Angara, 272 SCRA 18, at 54, 1997.
8. For example, Olga Tellis v Bombay, 1986.
16. See Oposa Case op. cit 12.
28
15. See Kilosbayan v. Guingona, 232 SCRA 110, 1993.
Chapter II
of 1982 has provided a framework for adjudication of ESC

rights. This Charter has expanded judicial review and set up
important developments for the advancement of ESC rights.
It enshrines various ESC rights such as the right to education,
housing, health and social assistance, and labour rights. In
the case Chaoulli v. Quebec (Attorney General)17 related to
the decision of the Supreme Court of Canada to struck down
a Quebec law that banned the use of private insurance for
publicly insured health services covered under that provinces
universal health care system, Medicare, the Canadian Court
stated: When the courts are given the tools they need to
make a decision, they should not hesitate to assume their
responsibilities.18 Other decisions have supported this
position and empowered the poor.19
10] In South Africa the justiciability of ESC rights was largely
developed by the Constitution of 1996, which explicitly
inserted the States obligations to respect, protect, promote
and fulfil,20 and asks the State to accomplish their progressive
realization.21 In the case Fose v. Minister of Safety and
Security,22 the Constitutional Court of South Africa has
defined the meaning of an appropriate and effective remedy,
expressing that in our context an appropriate remedy must
mean an effective remedy, for without effective remedies for
breach, the values underlying and the rights entrenched in the
Constitution cannot properly be upheld or enhanced. Particularly
in a country where so few have the means to enforce their rights
through the courts, it is essential that on those occasions when
the legal process does establish that an infringement of an
entrenched right has occurred, it be effectively vindicated. The
courts have a particular responsibility in this regard and are
obliged to forge new tools and shape innovative remedies, if
needs be, to achieve this goal.
South Africas role in the social rights adjudication debate
is seen as revolutionary. The Constitutional Court has
applied the reasonableness review of section 27(2) of
the Constitution, in order to consider the reasonableness
of legislative or other measures taken by the state in order
to comply with its positive duties. The reasonableness
review takes into consideration the context of the measures,
including their purpose and their impact.23
3. The role of judges in the

advancement of ESC rights
11] The role of judges as the guardians of constitutions is
crucial for the recognition, and clarification of the definition
and enforcement of ESC rights, ensuring that they do not
remain on paper alone. The judges assist with achieving
the transformative potential of ESC rights, particularly in
combating poverty at local levels.
12] Based on the traditional separation of powers, courts are
responsible for the interpretation of the law. They have as a
guiding principle the national constitution and international
standards that are implemented directly or indirectly
into the national framework. Courts provide remedies and
redress situations concerning violations of human rights, as
well as taking decisions that include legal obligations for
governments and civil society, whenever their actions do not
respect human rights principles and standards.
13] Arguments in favour of and against the role of courts
providing interpretations of human rights lie at the centre
of the debate. Indeed, so-called theories of democracy have
stressed the single most important argument against the
enforcement of ESC rights by judges,24 arguing that as judges
are not elected by citizens, they should not be permitted a
say in the advancement of ESC rights, since their decisions,
in some cases, overrule pronouncements and priorities
defined by the peoples representatives, such as government
authorities, parliamentarians, and so on.
14] The objections are embodied in two types of arguments:
a.
The anti-democratic character of judges: unlike

governments and parliamentarians that are invested with
public endorsement, judges are not elected and therefore
should not decide on elements concerning political and
economic models and priorities. In addition, judges
impose a majority decision, instead of one that is broad
and participatory (counter-majoritarian objection).
b. The lack of technical capacities related to their

competences in economy, political sciences: indeed,
since ESC rights imply progressive policies with budgetary
implications as well as the definition of concrete priorities
and indicators, their competence in this matter has been
much debated.
17. S.C.R. 791, 2005 SCC 35.
18. Chaoulli v. Quebec (Attorney General) [2005] 1 S.C.R. 791, 2005 SCC 35, para 87.
19. Slaight Communications v. Davidson, 1989 1 S.C.R. 1038, Irwin Toy v. Attorney General
Quebec, 1989 1 S.C.R. 927, Gosselin v. Quebec (Attorney General), 2002 SCC 84, 2002
A.S.C.R, para 82, and in the case R. v. Ewanchuk (1999) 1 S.C.R. 330, para 73.
15] Concerning objections related to the financial impacts

of judicial review, it has already been demonstrated that civil
and political rights, as well as ESC rights, entail financial
20. Chapter 2 will provide clarification on the scope and content of these obligations.
21. The first landmark decisions related to the justiciability of ESC rights in South Africa are:
S v Zuma, 1995 2 SA 642 CC y S v Makwanyane, 1995 3 SA 391 (CC).
22. [1997] ZACC 6; 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC).
23. For the clarification of the reasonableness review and its difference with rationality
review see Khosa & Mahlauli v Minister of Social Development 2004(6) BCLR 569 (CC).
24. See Y. Ghai and J. Cottrell, The role of the courts in the protection of economic, social
and cultural rights, in Y. Ghai and J. Cottrell (eds) Economic, Social and Cultural Rights
in Practice, London Interights, 2004. See also V. Abramovich and C. Courtis, Supporting
justiciability of ESC rights, V. Abramovich and C. Courtis (eds) Los Derechos Sociales como
derechos exigibles, 2nd edn, 2004; and COHRE, Litigating Economic, Social and Cultural
Rights: achievements, challenges and strategies, 2003.
29
impacts. For example, the organization of regular elections

or the management of a criminal justice system both have
an impact on budgeting. As such, this line of argument does
not represent a solid critique of judicial review of ESC rights.
16] As regards the expenses required to implement ESC
rights, the financial implications in may cases are not
enormous and largely imply the preparation of action plans,
or occur only where a determined policy is impeded (for
example, prohibition of forced evictions). However, where
implementation is significant (vaccination campaigns,
expensive healthcare services, extension of the scale of
protection of the right to adequate housing or adequate
food), the courts are capable of self-restriction or may
even opt for a gradual advancement of the right. In South
Africa, for example, the court has ruled that courts are not
themselves directed at rearranging budgets,25 but regardless,
has supported progressive advancement of ESC rights.
17] Moreover, the CESCR has emphasized that in relation to
civil and political rights, it is generally taken for granted that
judicial remedies for violations are essential. Regrettably, the
contrary assumption is too often made in relation to economic,
social and cultural rights. This discrepancy is not warranted
either by the nature of the rights or by the relevant Covenant
provisions. The Committee has already made clear that it
considers many of the provisions in the Covenant to be capable
of immediate implementation.26
18] It is important in this regard to distinguish between
justiciability (which refers to those matters which are
appropriately resolved by the courts) and norms which are selfexecuting (capable of being applied by courts without further
elaboration). While the general approach of each legal system
needs to be taken into account, there is no Covenant right
which could not, in the great majority of systems, be considered
to possess at least some significant justiciable dimensions. It is
sometimes suggested that matters involving the allocation of
resources should be left to the political authorities rather than
the courts. For these reasons, such an argument should not
impede the normal and regular adjudication of ESC rights. And
this is why this manual supports the development of ESC rights
as justiciable rights, as well as the arguments supporting their
role in advancing human rights.
19] Four stages in the litigation process which demonstrate
the enormous potential of judges can be underlined:27 voice,
responsiveness, capability and compliance. Voice relates
to the ability of poor and marginalized people to voice their
25. TAC, 2002 5 SA 721 CC para 38.
26. Thus, in General Comment n3 (1990) Article 3; Article 7, para (a)(i); Article 8; Article
10, para 3; Article 13, para 2 (a), para 3 and para 4; and Article 15, para 3 are cited, by
way of example.
27. See this proposal from Siri Gloppen in Courts and Social Transformation: an analytical
framework, in Roberto Gargarella, Pilar Domingo and Theunis Roux, editors: Courts
and Social Transformation in New Democracies. An Institutional Voice for the Poor?.
Aldershot/Burlington: Ashgate, 2006, pp. 35-59.
30
Chapter II
claims; responsiveness is related to the willingness of the

court to respond to the concerns of poor and marginalized
people; capability is the legal effect of court decisions on
rights that significantly affect the situation of marginalized
and poor people; and finally compliance reflects the authority
of the decisions of the courts and compliance with these by
other branches, as well as their implementation through
public policies.
20] This manual adopts this pro-poor approach, in which courts
have a transformative capacity to change reality and provide
standards to struggle against the most inhuman deprivations.
Judicial decisions have accordingly an emancipatory impact
since they propose ways of relief to marginalized people.
Sometimes they even mark the beginning of social change.
Justiciability is the first founding step for legitimacy. For full
implementation, public policies and the participation of other
actors, such as civil society, are also crucial.
Judicial enforcement of positive obligations

One of the lessons derived from the concept of positive
obligations is that courts have been creative in developing
new procedures, methods and remedies, in order to effectively
advance human rights by the following means and techniques:
Means that have provided direct adjudication of ESC rights
include: Public Interest Litigation (PIL)1 and direction orders
and writs in India,2 the Tutela3 or amparo protection in Spain,
Mexico and Colombia, recurso de proteccion, public civil action
in Brazil, and injunctions among others.
Techniques that have expanded protection of ESC rights include:
the reasonableness review,4 proportionality, adequacy, the
theory of connexity,5 appropriateness, the vital minimum,6
the basic structure doctrine,7 unconstitutional states of
1. PIL is a strategic arm of the legal aid movement and which is intended to bring
justice within the reach of the poor masses, who constitute the low visibility
of humanity. Definition provided by S.P. Sathe, Judicial activism: the Indian
experience, Journal of Law and Policy, 6 (2001). See also Peoples Union for
Democratic Rights v. India, 1982 AIR (SC) 1473, 1476.
2. Articles 32 and 226 of the Indian Constitution give this prerogative to the
Supreme Court of India.
3. Writ of protection of fundamental rights, presented to any Colombian
judge, who will decide in a maximum of ten days the urgent matter of the
plaintiff.
4. The reasonableness review is a technique by which the court adjudicates claims
for the provision of social services and resources. The Courts asks itself whether
a particular policy or programme can be justified, and it will be justified if it is
reasonably related to a goal of providing access to the relevant socio-economic
rights (Grootboom case). Examples of the application of the reasonableness
review by courts can be found in the cases Grootboom (South Africa) and Chameli
Singh and Ors v State of U.P. & Another, JT 1995 (9) SC 380 (India), in which the
court ordered the construction of shelters, allowing for growth and development
in every aspect of life, and emphasized the right to life, stating that: The right
to life is guaranteed in any civilized society. That would take within its sweep
the right to food, the right to clothing, the right to a decent environment and a
reasonable accommodation to live in.
5. Colombian theory developed by the Constitutional Court of Colombia, in which
a right can be seen to be fundamental if linked to a fundamental right and to
human dignity.
6. The vital minimum is a German doctrine that seeks to ensure minimum
conditions of living to dignify the existence of the poor. The doctrine of the
vital minimum has also been developed by the Constitutional Court of Colombia
in rulings T 426/92 and T-011/1998, T-384/1998 and T-100 /1999 SU-225/1994
among others.
7. The basic structure doctrine is an Indian doctrine by which the Constitution
cannot be amended altering its general framework and basic structure. See His
Holiness Kesavananda Bharati Sripadgalvaru v State of Kerala, also known as the
Kesavananda Bharati Case AIR (SC) 1973, 1461.
Chapter II
[Judicial enforcement of positive obligations]
affairs,8 Directive Principles of State Policy and Fundamental

Duties (DPSP),9 and the clause for the eradication of the
present injustice10, among others.
Making ESC rights justiciable for the poor would therefore
incite the following positive consequences:
(1) Increase visibility, (2) Give voice to right-holders,
(3) Increase the accountability of duty bearers, (4) Provide
protection, remedies or reparations for alleged violations,
(5) Develop a means of compensation and redress, (6)Create
the basis for a short, medium or long-term policy, and
(7) Transform or adjust legal frameworks.

8. A procedure which incites authorities to correct inequalities, facilitate
the inclusion and participation of the most vulnerable groups as well as a
progressive obligation to develop material conditions for the most vulnerable
groups.
9. Directive Principles are not justiciable per se, but justiciable by interpretation of
a judge, when connected to the right to life and personal liberty. See op.cit. 6.
10. A procedure which incites the authorities to take concrete steps and actions
aimed at eradicating the situation of injustice of determined vulnerable
groups of society. This clause has been used in Colombia for the protection of
displaced persons for example. This clause demands the active participation of
all national authorities in order to stop de violation of the rights of minorities
and marginalized populations as well as the respect of equality and human
dignity.
21] On 10 December 2008, the UN General Assembly unanimously

adopted an Optional Protocol (OP) to the ICESCR.28 The
OP will have important implications for the justiciability of
ESC rights, securing redress for individual victims as well as
developing jurisprudence and public policies, since it provides
the Committee with the competence to receive and consider
communications related to violations of ESC rights.
4. Correlations between
justiciability and social justice:
towards a transformative
constitutionalism
22] The debate as to whether justiciability and social justice
come together or not is a false dichotomy. Social justice
naturally leads to a tension between rights and standards.
The rights provide the basis for inclusion, recognition and
participation in society, while the standards are to be seen
as tools and ways to realize, defend, promote and express
them. Justiciability is the voice of both since it provides legal
recognition and development of standards for redress.
23] Therefore, recognizing the rights of the most vulnerable
gives them the possibility to interact and participate in social
28. GA resolution A/RES/63/117.
life, generating integration and parity. Legal adjudication

breaks the cycle of misrecognition, and thus of subordination,
and institutionalizes transformative strategies to remedy
their human condition to establish a life with dignity.
Justiciability provides standards to redistribute social goods
such as non-discrimination, equality, access to rights and
resources, as well as minimum standards of legal protection.
Justiciability therefore becomes a tool of transformation and
empowerment by altering structured inequalities in society
and empowering social relations. Justiciability balances
socio-economic patterns by combating cultural, social, sexual
and racial discrimination.
24] We are today facing what is called transformative
constitutionalism,29 also known as a long-term project of
constitutional enactment, interpretation and enforcement
committed to transforming a countrys political and social
institutions and power relationships in a democratic,
participatory and egalitarian direction.30 This transformative
approach urges courts to develop a legal basis for open
dialogue, recognition of the other and inclusion, and to
transform needs into rights.
25] By providing affirmative action of redress, affirmation
and transformation of reality, justiciability develops
new standards of protection. Examples of redress and
transformation provided by justiciability can be found
worldwide and have demonstrated how justiciability provides
relief to the poor and transforms realities of discrimination
and marginalization. The following non-exhaustive section
presents examples of such adjudication.
a. Justiciability providing relief to people and

setting the basis for non-discrimination and
recognition
26] Five founding cases in the mid-1950s in the United
States of America marked a change in the way the judiciary
guarantees equal protection by the law and their role in
advancing social justice. The case Brown et al v. Board
of Education of Topeka et al in 1954 (referred to as the
Brown case), which consolidated opinion of five more cases,31
established a new understanding of the power of law by
declaring segregation at school based on racial arguments
29. The new paradigm of transformative constitutionalism and its correlation to social
justice finds its basis in the theory of Nancy Fraser. In her work, Fraser has developed
two main principles or strategies for remedying injustice: the affirmation of the other
and transformation. She affirms that affirmative strategies for redressing injustice
aim to correct inequitable outcomes of social arrangements without disturbing the
underlying social structures that generate them. Transformative strategies, in contrast,
aim to correct unjust outcomes precisely by restructuring the underlying generative
framework. In this sense, her theory embraces both a distributive conception and a
recognition approach as a foundational basis for social justice, in N. Fraser and A.
Honneth, Redistribution or Recognition? A Political-Philosophical Exchange, 2003, p.
74. In her later work, Fraser adds a third dimension related to justice: the political
dimension underlying distribution and recognition are political since they are usually
seen as requiring adjudication by the state, in Scales of Justice: remaining political space
in a globalizing world, 2008, pp. 1617.
30. K. Klare, Legal culture and transformative constitutionalism (1998) 10 27 SAJHR 146.
31. Belton (Bulah) v. Gebhart (Delaware), Bolling v. Sharpe [District of Columbia], Brown v.
Board of Education (Kansas), Davis v. County School Board (Virginia), and Briggs v. Elliott
(South Carolina).
31
unconstitutional. Its interpretation of the Fourteenth

Amendment went beyond a formal reading and guaranteed
equal protection of laws, placing all (blacks, whites,
minorities) on an equal footing. By defining legal standards
against racial segregation, the Brown case can be considered
as the founding decision of the role of the judiciary in
developing equal standards for protection and creating the
legal arguments for social justice and transformation.
27] The judiciary in the Brown case stated that where
the State has undertaken to provide an opportunity for an
education in its public schools such an opportunity is a right
which must be made available to all on equal terms.32 The
Brown case overturned the jurisprudence of an earlier case,
Plessy v. Ferguson,33 which was founded on the separate but
equal doctrine. The judges revised the precedent established
by the Plessy case and argued that in the field of education
separate educational facilities are inherently unequal.
28] A similar transformative decision can be found in South
Africa, where transformation triggered by court decisions
has been crucial with regard to racial segregation and
discriminatory policies entrenched since the Apartheid period.
In the landmark case Premier, Province of Mpumalanga, and
Another v. Executive Committee, Association of Governing
Bodies of State-Aided Schools (referred to as the Premier
Case),34 the Constitutional Court studied two important
issues. The first was the need to eradicate patterns of racial
discrimination and to address the consequences of past
discrimination which persist in South-African society. The
second was the obligation of procedural fairness imposed
upon the government in a case related to bursaries. After a
profound revision of the need of transformation in educational
systems,35 the court affirmed that the Constitution dictated
not only the end, which is the establishment of a non-racial,
non-sexist democracy, but also regulated the means, including
the obligation to observe procedural fairness.
29] The same argumentation was developed in Bel Porto
School Governing Body and Others v. Premier, Western Cape
and another (referred to as the Bel Porto case),36 related to a
policy concerning the employment and subsidies to teachers
and their general assistants. The subsidies were based on an
unequal educational scheme inherited from the segregation
period. Stating that eradicating the racial discrimination
32. Brown Case, p. 493.
33. Plessy case, 163 US 537.
34. Premier, Province of Mpumalanga, and Another v Executive Committee, Association of
Governing Bodies of State-Aided Schools. Eastern Transvaal 1999 (2) SA 91 (CC) and 1999
(2) BCLR 151 (CC).
35. In the Premier case, the South African Constitutional Court explained the roots of the
segregation: under the former apartheid government, schools were generally racially
divided with separate government schools for African, coloured, Indian and white
children. Different ministries were responsible for the administration of these separate
schools. In line with government policy, significantly more government funds were
expended for each white child who attended school than were expended for each
black pupil. As a result, schools for white children were generally well-equipped with
classrooms, sports facilities and qualified teachers. Schools for black children were often
dilapidated, with poor facilities and under-qualified teachers (paras 7 and 8).
36. Bel Porto School Governing Body and Others v. premier, Western Cape and another
(hereafter Bel Porto case) 2002 (9) BCLR 891.
32
Chapter II
rooted in our education system is not a quick or easy task and

[] remains a complex challenge, the Court studied whether
the differentiation constituted unfair discrimination against
the appellants since they were assistants from a special
school for disabled children. The Court ruled that the process
of transformation shall be carried out in accordance with the
provisions of the Constitution and its Bill of Rights and added
that the transformation process will necessarily weigh more
heavily on some members of the community than on others.
30] In the case Socio-Economic Rights and Accountability
Project (SERAP) v. Nigeria,37 the Court of the Economic
Community of West African States (ECOWAS) adjudicated a
claim based on the right to education, even if such a right
was arguably non-justiciable in domestic constitutional law
in Nigeria. The ECOWAS Court dismissed the Governments
contention that education is a mere directive policy of the
government and not a legal entitlement of the citizens. The
ECOWAS Court affirmed that the rights guaranteed by the
African Charter were justiciable before them, and supported
the justiciability of the right to education in this particular
case. The SERAP case has permitted NGOs to access the
ECOWAS Court to seek the enforcement of economic, social
and cultural rights.
31] In Colombia, similar kinds of transformative decisions
providing recognition to segregated and marginalized
people were decisive in changing the perception of the most
vulnerable members of society. In a decision related to a
case of deprivation of rights of displaced people, the Court
provided a revolutionary decision ordering the immediate
remedy of the unconstitutional state of affairs, and ordered
the public authorities to develop and implement an Action
Plan with the participation of the displaced people in all the
policies and strategies concerning them. The Court further
proposed that the recommendations be followed up.38
b. Justiciability providing relief to the most

vulnerable through the redistribution of goods
32] In the case Mariela C. Vicomte v. Ministry of Health
and Social Action39 the Argentinean Court of Appeal ordered
the Argentinean Ministry of Health to organize a massive
campaign of vaccination for 3.5 million people suffering from
fever (positive obligation) and elevated the legal protection of
the right to health by protecting millions of people, especially
children, which created a massive social justice campaign.
33] In South Africa, in Minister of Health v. Treatment
Action Campaign (TAC),40 the Constitutional Court ordered
37. Socio-Economic Rights and Accountability Project (SERAP) vs. Federal Republic of Nigeria
and Universal Basic Education Commission, nECW/CCJ/APP/0808, 27 October 2009.
38. Ruling T 025/2004.
39. Argentinean Court of Appeal, 2 June 1998, Judgment n98.096.
40. Minister of Health v Treatment Action Campaign (TAC) (2002) 5 SA 721 (CC).
Chapter II
the Government to extend the availability of Nevirapine an

anti-retroviral drug for HIV-positive pregnant women that can
avert tens of thousands of unnecessary infections and deaths
to hospitals and clinics, to provide counsellors, and to take
reasonable measures to extend the testing and counselling
facilities throughout the public health sector.
34] The same distributive decisions can be found in the 1998
Colombian ruling SU-225 of 1998, in which the Court
ordered a free vaccination campaign for poor children that are
confronted with a higher risk of contamination of meningitis.
The Court ordered the implementation of the Immunization Plan
This decision laid the basis for future decisions.41 Transformative
decisions relating to the fair distribution of healthcare services
were also given in another case (T-760 of 2008) in which
the Court ordered a dramatic restructuring of the countrys
health system, and in the ruling C-959 of 2000 through which
the Court reviewed the economic legislation related to the
calculation of mortgage debtors and tied the unit of constant
acquisitive power (UPAC) to the rate of inflation. This ruling
transformed housing financial legislation in Colombia.
35] In India, the formative case Azad Rickshaw Pullers
Union (Regd.) Ch. Town Hall, Amritsar v. State of Punjab
& Ors42 led to a transformative solution for the vulnerable
and discriminated rickshaw pullers by empowering them to
purchase their own rickshaw.
c. Justiciability transforming the reality of

special attention groups
36] Legal empowerment of women through judicial
adjudication has provided important guidelines for the
provision of recognition and adjudication of womens rights.
Adjudication has set up important ladders in breaking prejudice
and discrimination against women. For example, the landmark
case Bi Hawa Mohamed v. Ally Sefu of Tanzania43 made
important steps with regard to female equality, recognizing
housework and childcare as marital contributions, counted by
the spouse as matrimonial assets. This important case legally
recognized the economic value of womens investments in
marriages.
37] Other related decisions include: equal rights concerning
years for retirement in Indonesia (Nurhatina Hasibuan v. Pt.
Indonesia Toray Synthetics and others n651/PDT/1988/
PT.DKI Jakarta High Court); womens rights to remarry after
a divorce in Japan (X1 and X2 v. Government of Japan
Hiroshima High Court, 28 November 1991); the need for the
womans consent to validate a marriage under Pakistani law
(Humaira Mehmood v. The State and others, 1999); and
41. For example, ruling T-177 of 1999, ruling T-840 of 1999 and ruling T-772 of 2003, among
others.
equality concerning a mothers guardianship of children after

the death of the father (Ms Githa Hariharan and another v.
Reserve Bank of India and another with Dr and Vandana
Shiva v. Jayanta Bandhopadhyaya ann another, Air 17
February 1999, Supreme Court of India 1149).
38] In South Africa, in the landmark case Bhe v. Magistrate
Khayelitsha & Ors,44 which embraced two other cases (Bhe,
SAHRC and Shibi), the Constitutional Court declared the
African customary law rule of primogeniture unconstitutional
and struck down the entire legislative framework regulating
the estates of intestate deceased black South Africans.
39] A recent case in France, Siliadin v. France,45 analysed
the scope of domestic labour and concluded that domestic
slavery of women still exists in Europe. A 15-year-old
Togolese women, unlawfully resident in France, was working
every day from 7.30 am to 10.30 pm with no pay and forced
to sleep in a coach with old clothes. The Committee against
Modern Slavery (Comit contre lesclavage moderne), alerted
by a neighbour filled the petition. The case was studied by
the European Court of Human Rights (ECHR). the Court noted
that even though the provisions of the French Criminal Code
related to the performance of services without payment, they
did not deal specifically with the rights guaranteed under
Article 4 of the European Convention, and were incompatible
with human dignity. The Court stressed that such delivery of
a child (), with a view to the exploitation of her labour, was
similar to the practice, analogous to slavery, referred to in
Article 1(d) of the United Nations Supplementary Convention
of 195646 and that the situation had compromised her
education and social integration47. This case is particularly
important, not because it relates to ESC rights, but because
it provided an example of modern servitude, vulnerability
and a state of dependence: The reasoning of the Court was
the following: The Siliadin Case denounced such new forms of
denigration of human dignity, as modern slavery especially
in the case of migrants.
40] A number of important cases have provided the basis for
prohibition of child employment, forced or voluntary, even
if caused by economic necessity. In the Indian cases M.C.
Mehta v. State of Tamil Nadu and Ors and Bandhua Mukti
Morcha v. Union of India,48 the Court highlighted that as a
result of poverty, children and youth are subjected to many
visible and invisible forms of suffering and disabilities, in
particular, health, intellectual and social degradation and
deprivation, and that this exploitation of their childhood is
detrimental to democracy and social stability, unity and the
integrity of the nation.
44. Case Bhe v. Magistrate Khayelitsha & Ors, 2005 (1) BCLR 1 (CC), 15 Oct. 2004.
45. Case Siliadin v. France, Application n73316/01, European Court of Human Rights (ECHR),
Judgment, Strasbourg, 26 July 2005.
46. Siliadin v. France, para. 92.
42. [1980] INSC 147 (5 August 1980), India.
47. Siliadin v. France, par. 95.
43. Court of Appeal Case n19, Tanzania, 1983.
48. (1996) 6 SCC 756 and 21/02/1997, respectively.
33
41] The Court recalled that welfare enactments made by

the Parliament and the appropriate State Legislatures are
only teasing illusions and a promise of unreality unless
they are effectively implemented and make the right to the
child driven to labour a reality, meaningful and happy. It
therefore prohibited child labour and asked that educational
programmes, principles and policies for the progressive
elimination of employment of the children below the age
of 14 years be implemented. Along the same line, the
decision International Commission of Jurists v. Portugal
of the European Committee on Social Rights also had a
strong impact in relation to child labour in Portugal: the
Constitution was amended and the government adopted a
plan to eliminate exploitative child labour.49
42] In the case Sheela Barse And Others v. Union of India
Others,50 the Supreme Court of India made an order which
consisted of seeking the cooperation of non-governmental
organizations to assist in the task of rehabilitating physically
and mentally retarded and abandoned children jammed into
safe custody jails.
43] The following chapters will develop these premises.
They will demonstrate that the direct impact and influence
of judges decisions on social practices is complex and
requires the participation of other actors responsible for
implementation and monitoring at the local level. NGOs (and
other actors, such as the media, for example) can fulfil this
task and provide alternative solutions for the compliance of
judges orders by developing legal channels in the field and
through the socialization of ESC rights.
5. What role for NGOs in

advancing justiciability?
44] In todays globalized world, other actors in society have
a role to play in revising constitutional and international
standards, especially when these relate to ESC rights. We cannot
talk about the reinforcement of ESC rights without including
all such actors in the transformative processes. Indeed, as
demonstrated above, ESC rights imply a commitment to social
integration, solidarity and equality and include tackling the issue
of income distribution which is indispensable for an individuals
dignity and the free development of their personality.51
45] For this reason, advocacy of ESC rights has become one
of the main goals in the fight against poverty, impunity,
49. International Commission of Jurists vs. Portugal, European Committee on Social Rights,
September 9, 1999.
Chapter II
social exclusion and discrimination.52 At the national level,

five categories of interpretation and implementation of ESC
rights can be mentioned:
(1) The judicial level in which Courts define the rights and
give effective remedy in the case of alleged violations of
human rights, developed at length above.
(2) The parajudicial level composed of other actors
Ombudsmen, public defenders and Human Rights
Commissions that are closer to civil society and act as
mediators. They provide useful lobbying and advocacy.
(3) The legislative branch, which translates the international
human rights framework into national standards.
Legislators create the legal framework within which
human rights become a national goal.
(4) The administrative branch which translates legal
obligations into policies, programmes and projects.
(5) Finally, the fifth category comprises NGOs, National HR
Institutions and the academic community. All have a
crucial role to play in the struggle against local poverty
and for the advancement and definition of ESC rights, as
a result of their composition, strategic position, lobbying
capacities and monitoring. This category constitutes an
open community of interpreters.
46] NGOs roles and tasks have increased in todays world; they
have become leaders in supporting policymakers, advancing
advocacy and justiciability, providing a voice to the poor and
acting as think tanks providing real knowledge. Their crucial
role in giving legitimacy and voice to the grassroots in the fight
against poverty is undeniable. They have founded the roots of
a new form of governance from below.53 NGOs have come up
with different approaches54 in the struggle against poverty:
by focusing on development, the roots causes of poverty, the
consequences of poverty, social protection and empowerment,
they have become part of a multilateral system, which includes
their work in all strategies, plans and normative actions.
47] As a result, their organizational structures have
empowered their presence at political and local levels,
allowing for better impact and visibility, especially in the
field of combating poverty,55 as for example through the
establishment of campaigns, meetings, publication of parallel
reports, studies and manuals among other initiatives.
48] In fact, if justiciability involves the process of
adjudication of rights by judges, it also implies the
52. See P.J. Nelson and E. Dorsey, New Rights Advocacy: changing strategies of development
human rights NGOs, Washington DC, Georgetown University Press, 2008.
53. It is important not to classify types of NGOs (for example, welfare NGOs, development
NGOs, empowerment NGOs or social action groups provide by K. Ranjani Murthy and Nitya
Rao, Addressing poverty: Indian NGOs and their Capacity. Enhancement in the 1990s (New
Delhi: FES, 1997), but rather to identify their structural organization and to understand
their potential for empowering the poor. For the role of NGOs in new governance, see
for example: J. Plache, Socit civile: un acteur historique de la gouvernance, C.L Mayer,
Coll. Dossier pour un dbat, April, 2007.
50. AIR 1986 SC 1773.
54. P. Sparr and C. Moser, International NGOs and Poverty Reduction Strategies: the
contribution of an asset-based approach, Global Economy and Development, Working
Paper n8, Brooking Institution, Washington DC, 2007, p. 23.
51. J.K. Mapulanda-Hulston, Examining the justiciability of economic, social and cultural
rights, International Journal of Human Rights, 4, 2002.
55. A. Kumar, J. Aart Scholte, M. Kaldor, M. Glasius, H. Seckinelgin, H. Anheier, Global Civil
Society 2009: poverty and activism, London, Sage, 2009.
34
Chapter II
responsibilities of other actors engaged in the implementation

of principles and core elements of such rights. In this sense,
the contributions and challenges of NGOs are enormous,
since NGOs escort the justiciability of ESC rights. Their
contributions to the adjudication of ESC rights can be
enumerated as follows:
Capacity to hear, share and interpret the needs of
disadvantaged people
Legal representation for collective claims: the possibility
to multiply the impact of an individual claim as part of a
collective claim
Community mobilization
Broad membership
Accurate and strategic litigation related to ESC rights
Innovative interpretations of ESC rights
Invaluable advocacy in the field of ESC rights
Provision of exemplary good practices related to ESC
rights
Monitoring or follow-up of the decision derived from a
claim related to human rights and especially ESC rights
Greater funding capacity.
49] Examples of the participation of NGOs in justiciability are
numerous. In the Argentinian case, Asociacin Benghalensis
y otros c. Ministerio de Salud y Accin Social56 the support
of a coalition of NGOs was crucial for the decision related to
HIV medication in public hospitals. The Supreme Court stated
that the State is obliged to provide the medicine for diagnosis
and treatment, and the role of NGOs enabled this individual
claim to be transformed into a collective claim. Another
example is the intervention of a coalition of NGOs in the
Treatment Action Campaign case. This provided a massive plan
of action for access to HIV-AIDS treatments, and proved that
access to accurate information on health while linking this
information to rights, can form a basis for the empowerment
of marginalized people, who begin to assume both a public
voice and visibility.57 In Bandhua Mukti Morcha v. Union
of India, NGOs exercised direct advocacy in the abolition of
child labour in India. A recent case, the European Federation
of National Organizations working with the homeless
(FEANTSA) v. France,58 marked an important step in the
advancement of the right to housing in France by providing
the basis for transforming it into a justiciable right.
50] NGOs also played a crucial role in another case that
opposed Nigeria and Social and Economics Rights Action
(SERAC) and the Center for Economic and Social Rights (CESR)
(Serac and CESR v. Nigeria)59 over the obligations of a healthy
environment and the massive violation of the right to shelter
56. Argentinian Supreme Court, Asociacion Benghalensis y otros c. Ministerio de Salud y
Accion Social, Estado nacional s/amparo, 1 June 2000 or Argentinian Supreme Court,
Asociacin de Esclersis Mltiple de Salta c. Ministerio de Salud, 18 December, 2003.
57. However, it would have been suitable to undertake accountability a posteriori since the
TAC case was not implemented following the decision.
58. Complaint n39/2006, decision of Merits of 5 December, 2007.
59. Communication N 155/96, 1327 October, 2001.
of the Ogoni community. In Canada, in the case Corporation

of the City of Victoria v. Natalie Adams and others relating
to the right to adequate housing, the Centre of Poverty and
Human Rights made a clear opening statement supporting
the position of the respondents by quoting the link between
poverty and human rights and the States obligations derived
from the right to adequate housing.60
51] NGOs action for justiciability has also been particularly
important in connection with the development of the
recently adopted Optional Protocol of the ICESCR. Mentions
and campaigns for justiciability of ESC rights have been
numerous,61 and have pushed forward the significant
capacity and responsibility of court adjudication in providing
consistency among human rights and in holding governments
accountable.62
Recommendations to NGOs in relation to the

principles of non-discrimination and equal
protection
1. Promote (lobby) the necessity for developing concrete
legislation preventing discrimination
2. Develop awareness in the field on concrete actions to avoid
all forms of discrimination
3. Develop regular training programmes and support inclusive
activities
4. Recognize the right to Prior Consultation as a tool for
creating inclusive laws to include all the needs of all right
holders
5. Involve NGOs in adjudication, definition of core elements of
ESC rights, and monitoring
6. Complement violation approaches with involvement in
adjudication and definition strategies.
60. Case CA 36551 S.C.B.C. n05 4999. The intervention of the Poverty and Human Rights
Centre is available at: www.povnet.org/sites/povnet.org/files/PHRC%20Factum%20
Adams.pdf.
61. See Fact Sheet n3 of the International NGO Coalition of an Optional Protocol to the
ICESCR the justiciability of economic, social and cultural rights: national, regional
and international experiences, available at: www.icj.org/IMG/pdf/ESCRFactSheets.pdf,
pp. 610. See also Litigating economic, social and cultural rights: legal practitioners
dossiers, COHRE, 2006, available at: www.cohre.org/store/attachments/COHRE%20
Legal%20Practitioners%20Dossier.pdf.
62. See, for example, Fact Sheet n7, Coalition for an Optional Protocol to the ICESCR, The
question of justiciability.
35
Chapter II
Exercises
1) In your opinion, what is the role for judges in advancing human rights? Are they solely responsible for human rights
monitoring? Justify.
2) Analyse the legal system of your own country. Does it allow strategic litigation on ESC rights? If not, what procedures
aim at protecting human rights and ESC rights in particular?
3) Please provide concrete answers on how NGOs can effectively have a say in fighting against poverty by means of human
rights. Give examples from your own experiences.
36
Conceptual clarifications on
economic, social and cultural rights
37
1. Economic, social and cultural (ESC) rights and civil and
political (CP) rights in the struggle against poverty
38
2. State obligations
a. Obligation to respect
b. Obligation to protect
c. Obligation to fulfil
41
3. The duties of non-discrimination and equal protection
43
4. Minimum core approach to ESC rights
5. The progressive realization of ESC rights
45
6. The prohibition of retrogressive measures
7. Maximum available resources clause
Chapter III
Chapter III:
Chapter III
Zsolt Zatrok
Chapter III:
Conceptual
clarifications on
economic, social and
cultural rights
The present chapter seeks to clarify the content of ESC rights, the State obligations that derive
from their advancement, and their relation to civil and political rights. Since ESC rights and civil
and political rights are indivisible and interdependent, they contain both positive and negative
obligations. This chapter examines this tripartite division of state obligations and provides an
explanation of the meaning and scope of the minimum core content of ESC rights, which provides a
platform for anti-poverty strategies and adjudication. It highlights, in particular, the relationship
between state obligations derived from ESC rights and the minimum core approach, which provides
guidelines to judicial review. Last, this chapter explores the principle of progressive realization of
ESC rights as a core element in the fight against poverty.
1. Economic, social and

cultural (ESC) rights and civil
and political (CP) rights in
the struggle against poverty
1] Increasing the levels of enjoyment and respect of ESC
rights empowers the struggle against poverty, since those
rights are directly linked to the right of decent living, thus
to human dignity and an individuals worth. Poverty deprives
human beings of their basic needs and places them in
situations of vulnerability. People in poverty have no rights;
this injustice links poverty directly to the concept of dignity:
when people are unable to enjoy their basic needs such
as food, clothing, medical care, water, adequate housing
they are unable to live a decent life or enjoy a level of wellbeing as human beings. It is undeniable that efforts made
by governments to attain benchmarks on the development
of education, access to water, adequate housing and access
to adequate food, for example, constitute progressive steps
in the recognition of human rights. But in order to be taken
as effective advancements in fighting poverty, policies need
to reach the poorest and excluded groups of the society.1 As
for example, in the Indian Case Indra Sawhney v. Union of
1. D.A. Reidy and M.N.S. Sellers (eds) Universal Human Rights: moral order in a divided
world, Lanham (Md), Rowman and Littlefield, 2005.
India,2 the Supreme Court of India observed that in order to

eradicate poverty, it is necessary to ensure free medical care,
education, access to employment, housing, land reforms and
free water in order to eliminate inequalities.
2] ESC rights are therefore integral components of poverty
reduction strategies, and it is in this sense that the High
Commissioner of Human Rights has set out the human rights
of particular relevance to poverty: the right to work, adequate
food, adequate housing, health, education, personal security
and privacy, equal access to justice, and political rights and
freedoms. ESC rights address poverty by providing minimum
essential levels of basic services, ensuring the respect of
human rights directly linked to human dignity as well as
minimum core obligations. For this reason, the advancement
of ESC rights is expected to provide a common basis for
mitigating poverty.
3] The interdependence and indivisibility of human rights
has already been defined in Chapter 1. However, it was
traditionally taken for granted that civil and political rights
impose negative obligations, whereas economic, social and
cultural rights impose positive obligations. However, it has
subsequently been clarified that all human rights include
negative and positive duties. This clarification has been
2. 1997 supp (3) SCC 217.
37
provided through guidelines of the Committee on Economic,

Social and Cultural rights in its general comments, as well
as by the Maastricht Guidelines on violations of economic,
social and cultural rights. The Committee has thus underlined
the need to treat ESC rights and civil and political rights
in an equal manner, stating that the adoption of a rigid
classification of ESC rights and civil and political rights is
arbitrary.
4] Indeed, as all human rights are independent and
interrelated, they apply to all human beings and should
be treated as equal by all human-rights actors and States.
The upcoming Optional Protocol (OP) to the ICESCR also
provides additional arguments for the consideration of ESC
rights and CP rights on an equal footing. Moreover, as explored
in Chapter 2, the justiciability of ESC rights constitutes an
important advancement in the achievement of goals related
to social goods. Simply put, all human rights are justiciable
and can be claimed.
5] Categorizations of ESC rights and civil and political rights
are thus undermined, as ESC rights are not only justiciable,
but interrelated and indivisible from civil and political rights.
Similarly, the latter have implications for ESC rights, since
violations of civil and political rights are intrinsically linked
to violations of ESC rights: For example in the case Airey
v. Ireland, the European Court of Human Rights held that
there is no water-tight division between civil and political
and economic, social and cultural rights.3
6] In the case Hijirizi et al v. Yugoslavia4 related to the
burning of a Roma settlement, the Committee against Torture
found that burning and destruction of houses constitutes,
in the circumstances acts of cruel, inhuman or degrading
treatment of punishment. Consequently, the failure of the
state to provide protection to the Roma communities, as well
as redress and compensation to the victims violated Article
16 of the Convention against Torture.
7] Following the assumption provided in Chapter I, legal
empowerment through human rights is a tool that can
assist people to move out of poverty. For this reason, it is
imperative to adopt a unified approach to human rights, since
the ability to exercise ones right to food, to housing, clothing
medical care and education, through the exercise of a right to
participation, expression and other civil and political rights, is
vital for individuals if they are to move away from being poor,
and for society to eradicate poverty.5
8] This important statement on the relation between ESC
rights and CP rights and their impact on the fight against
poverty also constitutes a reaction against the categorization
Chapter III
mindset of the two visions of human rights contained in the

adoption of two Covenants of 1966.6
2. StateS obligations7
9] Examining the nature and extent of States obligations
under international and national human rights standards is
essential in order to understand precisely what can and should
be expected from States.8 The Limburg Principles on the
Implementation of the International Covenant on Economic,
Social and Cultural Rights (adopted in 1986) as well as the
Maastricht Guidelines (adopted in 1997), both elaborated
by a group of experts on international law, have provided
clarification on the nature and scope of the obligations of
State Parties presented in Article 2 of the ICESCR.
10] Taking into account these proposals, ESC rights impose
two kinds of obligations on States: the obligation of conduct,
which demands that States take concrete steps towards the
full realization of ESC rights and is applied immediately; and
the obligation of result, which demands a specific effect and
is often realized progressively. Within the obligation of result
lies a discussion on available resources, which will be covered
later.9
11] As to the first obligation, steps should be deliberate,
concrete and targeted,10 and often related primarily to the
legislative measures desirable for the full implementation of
ESC rights. ESC rights also embrace administrative, financial,
educational and social measures11 that take into account
all the appropriate means, which include judicial remedies,
according to General Comment n3.12 It is here that courts,
human rights institutions and NGOs play a part, since their
actions can propose additional ways and means to assist the
States in meeting their obligations.
12] The obligation of result requires the State to achieve
a specific target, such as the reduction of child labour or
maternal mortality. The progressive realization of ESC rights
is usually tied to the obligation of result, giving the States
6. Ideological and political circumstances such as the End of the Cold War are invoked in
order to understand the division into two covenants of civil and political and economic,
social and cultural rights. For more details on the drafting history of the two covenants,
see M. Sepulveda, The Nature of the Obligations under the International Covenant on
Economic, Social and Cultural Rights, Intersentia, 2003 pp. 11636.
7. See P. Alston and G. Quinn, The nature and scope of State Parties: obligations under the
International Covenant on Economic, Social and Cultural Rights, Human Rights Quarterly,
9(2), May 1987, pp. 156229. See also Sepulveda op.cit, Chapter IV, and A. Eide, C.
Krause and A. Rosas (eds) Economic, Social and Cultural Rights as Human Rights: a
textbook, Martinus Nijhoff, Dordrecht, 2001.
8. See The Limburg Principles (1986), especially principles 17 and 18, in UN doc. E/
CN.4/1987/17, Annex; Human Rights Quarterly, Vol. 9 (1987), pp. 12235; and
Maastricht Guidelines (1998).
9. The Committee has already stressed that no specific form of economic and political
system is implied in this statement.
3. Case Airey v. Ireland, Application n6289/73, 9 October 1979, para. 26.

4. ECHR Communication n161, 2000.
5. See S. Skoglys proposals in: Is there a right not to be poor? Human Rights Law Review,
2(1), 2002, pp. 5980.
38
10. See para. 2 of UN General Comment n3 related to the Nature of State Parties
Obligations.
11. Para. 7 of G.C. n3.
12. Para. 5 of G.C. n3.
Chapter III
more flexibility to ensure in a reasonable period of time

the enjoyment of the rights. Yet, this requires financial and
technical support, in addition to other types of effort, to
ensure that the State may fulfil its duties.
13] These levels of obligations have been specified in a
tripartite typology drawn up by the CESCR: to respect, protect
and fulfil.13 For some rights the obligation to fulfil includes
two other duties: the obligation to facilitate and to provide,
as affirmed, for example, in General Comment n12 related
to the right to food. A fourth categorization of duties,
the obligation to promote aimed at achieving long-term
goals, has also been proposed by academia. The different
categorizations of State duties are therefore interdependent
and interrelated. Hereafter, we will follow the tripartite
typology since it has been developed by the Committee. In
the following chapters, specifications concerning additional
categorizations will be applied wherever necessary.
14] In a nutshell the three obligations can be described as
follows: the obligation to respect requires States to refrain
from interfering with the enjoyment of economic, social
and cultural rights. The obligation to protect requires that
States prevent violations of such rights by third parties.
Finally, the obligation to fulfil requires States to take
appropriate legislative, administrative, budgetary, judicial
and other measures towards the full realization of such rights,
understanding that the international doctrine has already
accepted that legislative measures alone are not sufficient.14
15] The obligation to respect requires that States do
not interfere directly or indirectly with the enjoyment
of economic or social rights. This obligation is essentially
negative in nature, meaning that the State must not take any
action that diminishes the enjoyment of any given economic
or social right, unless there are justifications for doing so.
The obligation to respect is of immediate effect (e.g., upon
ratification of the ICESCR) and not subject to progressive
realization. This obligation entails the following components:
(1) Refraining from interfering with the existing enjoyment
of ESC rights
(2) Refraining from impairing access to ESC rights, and
(3) Mitigating the impact of interference in the enjoyment of
ESC rights.
16] Examples of refraining from interfering with the

existing enjoyment of ESC rights can be found in national
experiences of adjudication. In South Africa for example in
the case Jaftha v. Schoeman and others,15 Van Rooyen v.
Stoltz and Other,16 related to a law which permits the sale
in execution of peoples homes because they have not paid
their debts, the court affirmed that the Magistrates Courts
Act 32 of 1944, which deals with the sale in execution of
property in order to satisfy a debt, violates the security of
tenure, and the obligation to respect the right to have access
to adequate housing. In the case Asociacin Benghalensis
y otros c. Ministerio de Salud y Accin Social,17 related to
access to medicine for people with HIV-AIDS, the Supreme
Court of Argentina underlined the obligations of the state to
abstain from interfering and to act positively to promote the
enjoyment of the rights in such cases.
17] Examples from refraining from impairing access to ESC
rights have been developed in the case Minister of Health
v. Treatment Action Campaign (TAC), in which the courts
stressed that the State has a positive duty to provide access
to medical assistance. The court ruled that the non-provision
of Nevirapine available in public health facilities to prevent
transmission of HIV from mother to child is unreasonable, and
affirmed that State measures failed to address the need of
mothers and their newborn children who do not have access
to the sites where nevirapine is available.18
18] Similar assumptions were made in the case Khosa &
Others v. Minister of Social Development & Others.19 In
this case, the Social Assistance Act 59 of 1992 limited the
entitlement to social grants for the aged to South African
citizens, preventing children of non-South African citizens in
the same position as the applicants from claiming any of the
childcare grants available to South African children.20 Another
South African case, the Residents of Bon vista Mansions v.
Southern Metropolitan Council Citizens, related to the right
to access to water developed the same reasoning. The South
African High Court held that disconnecting the service of water
supply because of non-payment of charges was a violation of
the obligation to respect the access to water of section 27 of
the Constitution and the Water Services Act.
19] Examples of mitigating the impact of interference in
the enjoyment of ESC rights include decisions concerning
15. These cases are particularly crucial for protecting the poor. In the Jaftha case, Mrs
Jaftha is unemployed woman, with ill health (heart problems and blood pressure), poor
and has a low level of education. She has two children and has applied for and was
granted a state housing subsidy with which she bought a home. After several payments
she stopped paying her debt, and following ahospitalization discovered that her house
was to be sold in a sale of execution to pay her outstanding debt. In the second case,
Mrs Van Rooyen was also a poor woman, without education, unemployed and with three
children. She couldnt pay her debt.
16. 2005 (1) BCLR 78 (CC).
13. This tripartite typology derives from the proposals of the political philosopher Henry
Shue in his 1980 work Basic Rights: Subsistence, Affluence and US Foreign Policy. The
author proposes three basic rights: physical security, subsistence and liberty. He further
proposes three type of duties: to avoid depriving people of their rights; to protect them
against such deprivation by others; and to aid those whose rights have already been
deprived. This proposal was later adapted to the tripartite typology to respect, protect
and fulfil.
14. See Maastricht Guidelines para. 6.
17. Argentinian Supreme Court, Asociacion Benghalensis y otros c. Ministerio de Salud y

Accion Social, Estado nacional s/amparo, 06-01-2000.
18. See paras. 67 and 80.
19. 2004(6) BCLR 569 (CC); 4 March 2004.
20. See also the case Mashava v. President of the Republic of South Africa, 2004 12 BCLR 1243
(CC).
39
Chapter III
the obligation to provide alternative housing during or

after an eviction. We can refer to the case Modderfontein
Squatters v. Modderklip Boerdery LTD21 which illustrates
the State obligation to protect the right to housing of
squatters by providing alternative housing. In the same way,
tin the case Serac and CESR v. Nigeria (Ogoni Case),22 the
African Commission stated that the killing and destruction
by government forces and agents of the State-controlled oil
company violated Nigerias duty to respect the right to life
and dignity, the right to health, property, shelter and food,
and the right to economic, social and cultural development of
the Ogoni community.
20] The obligation to protect requires States to prevent third
parties or non-State actors or other States, including intergovernmental organizations, from violating the enjoyment
of economic and social rights. Third parties or non-State
actors include individuals, groups, landlords, corporations,
other States or other entities as well as agents acting under
their authority. The obligation includes, inter alia, adopting
the necessary and effective legislative, regulatory and other
measures to restrain such third parties and non-State actors
from interfering or otherwise violating economic and social
rights; investigating, prosecuting or otherwise holding
accountable those entities that violated economic and social
rights; and providing remedies to victims of such violations.
realization.The duty to protect entails the following
components:
(1) The duty to protect the enjoyment of ESC rights against
third-party interference
(2) The duty to ensure access to legal remedies in cases of
alleged violation of ESC rights by State and non-State
actors, and
(3) The preventive duty to avoid violations of ESC rights.
21] There are numerous examples of cases seeking protection
from third-party interference, in particular, cases implicating
private actors such as corporations, companies, employers or
providers of services that impede the enjoyment of a right.
In the Ogoni case, the State failed in its duty to prevent the
pollution caused by the oil company. The failure of the duty
to protect constitutes a violation of the right to a healthy
environment. In the Indian cases M.C. Mehta v. State of
Tamil Nadu & Ors and Bandhua Mukti Morcha v. Union of
India, the Supreme Court of India protected poor children
from child labour, highlighting the States obligation to
protect the vulnerable from such abuse. In the case Z and
21. 2004 6 SA 40 (SCA).

22. Communication n155/96 October of 2001.
40
others v. United Kingdom23 related to the failure of social

services in providing ill-treatment, the obligation to protect
was developed, in particular, to clarify the duty of private
health services.
22] Under the obligation to fulfil, States are obliged to
take steps to the maximum of their available resources to
progressively realize the rights contained in the ICESCR.
This obligation can be disaggregated into the obligations
to facilitate, promote and provide. The obligation to
facilitate requires States to take positive measures to assist
individuals and communities to enjoy the right in question.
The obligation to promote obliges the State to take steps
to ensure that there is appropriate education concerning the
right in question. States are also obliged to fulfil (provide) the
right in question when individuals or a group are unable, for
reasons beyond their control, to realize that right themselves
by the means at their disposal. The obligation to fulfil entails
the following components:
(1) The duty to take steps to improve the realization of a
right, and
(2) The adoption of appropriate and adequate measures to
enhance access.
23] The realization of a right provides the means for its
full enjoyment. Yet, the duty to fulfil goes beyond a strict
obligation-related approach and requires holistic and farreaching integrative actions that include the existence of law
reforms, independent national institutions, comprehensive
national agendas, allocation of resources, monitoring,
education, awareness-raising, training activities and the
involvement of civil society. The Committee of the Rights
of the Child has contributed to clarifying the content of
this obligation, stating that the full realization of the
childrens rights necessitates putting in place legislative,
administrative and other measures, including justiciability
of rights, comprehensive national strategies, and monitoring
and coordination at all levels.24
24] As to the appropriateness or adequateness of measures,
courts play an important role in this difficult task by
evaluating policies and developing justiciable standards in
order to advance the promotion and protection of human
rights. NGOs, in this context, are indispensible for monitoring
the effective realization of human rights. In the already
mentioned TAC case, the decision from the Constitutional
Court of South Africa led the government to implement
one of its largest programmes to prevent mother-to-child
transmission of HIV-AIDS.
23. ECHR 2001.
24. See General Comment n5 of the CRC related to General Measures of Implementation for
the Convention on the Rights of the Child.
Chapter III
25] In the Khosa and Others v. Minister of Social Development

case, the South African Court stated that everyone has the
right to have access to social security and concluded that the
exclusion of permanent residents from the legislative scheme
constituted a violation. This judgment has had an effect on
the protection of the rights of at least 250,000 people in
South Africa. The Bolivarian Republic of Venezuela reached
the same decision in the case Cruz Bermudez c. Ministerio
de Sanidad y Asistencia Social. The court analysed the
State obligation to provide retro-viral medication to patients
suffering from HIV-AIDS and held that not providing the drug
was a violation of the right to health.
26] Another case reflected the obligation of the government
to offer medical care for vulnerable persons. In the case
Free Legal Assistance Group and Another v. Zaire,25 the
African Commission affirmed that insufficient medical and
material care of persons detained in a mental health facility
constituted a violation of the right to health. The Commission
highlighted that governments should take steps towards the
full realization of the right. In Colombia, the ruling T-025 of
2004 of the Constitutional Court ordered the government to
take steps in order to end the irregular situation of thousands
of internally displaced people using the concept of the
unconstitutional state of affairs and ordering the correction
of a situation of exclusion and violation of their rights.26
27] All of these obligations have been found to be in one
way or another justiciable, and courts and other bodies
have enforced both the positive and negative aspects of the
different duties. Parallel to these duties, the principles of nondiscrimination and equal protection forbid any distinction,
limitation, exclusion or restriction in the execution of a
States obligations towards both public authorities and
private individuals.
3. The duties OF non-discrimination

and equal protection
28] When analysing elements relating to vulnerability,
principles of non-discrimination and equal protection lie
at the core of processes of power distribution, authority,
capability and action responsiveness within society. The
principles of non-discrimination and equal protection are
duties of immediate effect and constitute core elements in
the realization of human rights.
29] Several instruments and treaty bodies mention the
principle of non-discrimination. The UN Committee on
Human Rights has defined discrimination as any distinction,

exclusion, restriction or preference which is based on any
ground such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or
other status, and which has the purpose or effect of nullifying
or impairing the recognition, enjoyment or exercise by all
persons, on an equal footing, of all rights and freedoms.27
30] This definition has been transposed to regional HR
systems, such as the African Commission on Human and
Peoples Rights, which has established in a case related to
an internal provision that provided that anyone who wants to
contest the office of president has to prove that both parents
are/were Zambians by birth or descent. The Commission stated
that citizens should expect to be treated fairly and justly
within the legal system and be assured of equal treatment
before the law and equal enjoyment of the rights available
to all other citizens. The right to equality is important for a
second reason: equality or lack of it affects the capacity of
one to enjoy many other rights.28
31] Or to the Inter-American Court in relation to
discrimination, stating that: there would be no discrimination
in differences in treatment of individuals by a state when
the classifications selected are based on substantial factual
differences and there exists a reasonable relationship of
proportionality between these differences and the aims of
the legal rule under review. These aims may not be unjust or
unreasonable, that is, they may not be arbitrary, capricious,
despotic or in conflict with the essential oneness and dignity
of humankind.
32] The principle of non-discrimination reinforces the
principle of equal protection and is composed of negative
and positive obligations.29 The negative obligations consist
of refusing to create legal distinctions between groups of
society or the refusal to adopt norms that profit specific
groups. The positive obligations include all steps towards
the elimination of any distinction (de iure or de facto)
between groups (prejudice, conditions).30 Nevertheless, not
all differences in treatment are in themselves offensive to
human dignity or constitute a source of discrimination.31 In
this sense, for example, some jurisdictions have stressed the
principle of equality as a reflection of treating equals equally
and unequals unequally. 32
27. UN, Human Rights Council (former UN HR Committee), General Comment n18, Nondiscrimination, 10/11/89, CCPR/C/37, para. 7.
28. African Commission of Human and Peoples Rights, Communication No: 211/98 Legal
Resources Foundation v. Zambia, para.63.
29. See General Comment n20 regarding non-discrimination in economic, social and
cultural rights (Article 2, para. 2).
30. See the Inter-American Court of Human Rights, Advisory Opinion OC-18/03 of 17
September 2003, requested by the United Mexican States related to the Juridical
Condition and Rights of the Undocumented Migrants.
25. (2000) AHRLR 74 (ACHPR 1995).
31. See European Court of Human Rights, Belgium v. Belgium relating to certain aspects of
the laws on the use of languages in education in Belgium, Judgment of 23 July 1968,
Series A 1968, para. 10.
26. See Chapter 2, box on Judicial enforcement of positive obligations and para 32.
32. Thlimmenos c. Grce [GC], n34369/97, CEDH 2000-IV, 44.
41
Chapter III
33] In order to clarify the matter it is important to examine

the different grounds when talking about discrimination, and
combine such analysis with realization of ESC rights. This
combination will help ascertain whether a discriminatory
practice exists either de iure or de facto. Several examples
of case law provide clarification on this matter. For example
discriminatory actions in the field of education were studied
in the case Oliver L. Brown et al v. the Board of Education of
Topeka (KS) et al33 , the Supreme Court of the United States
declared that the discriminatory nature of racial segregation
violates the 14th amendment to the US Constitution, which
guarantees all citizens equal protection of the laws. This
case established the foundation for decisive future national
and international policies regarding human rights and nondiscriminatory policies, as well as the social and ideological
implications of legal practice.
34] Other examples include discriminatory policies in the
workplace against women, as in the case Ylimaz Dogman
v. the Netherlands.34 The Committee on the Elimination
of Racial Discrimination indicated that the State should
punish discrimination, particularly against women, in private
workplaces. Or discriminatory practices in relation to the
right of people to access public places as in the case Miroslav
Lacko v. Slovakia related to the denial of the owner of a
restaurant to let Roma people to access.35
35] An important advance has been made in relation
to sexual orientation grounds as a result of civil society
advocacy. The adopted General Comment n2036 of the UN
Committee on Economic, Social and Cultural Rights included
sexual orientation and gender identity as grounds for nondiscrimination, stating that states should ensure that a
persons sexual orientation is not a barrier to realizing
Covenant rights, for example, in accessing survivors pension
rights, and that persons who are transgender, transsexual or
intersex often face serious human rights violations, such as
harassment in schools or in the work place or others.
36] In addition to these examples, certain courts have
examined the financial implications of a special measure for
targeted groups on the basis of the non-discrimination clause.
In the case Egan v. Canada, the court found that excluding
a group from benefitting from the spousal allowance of the
Old Age Security Act on the basis of sexual orientation was
not necessarily a violation of the non-discrimination clause
of Section 15 of the Canadian Charter. The court held that
the financial implications, in this case, relating to extension
of the benefits, could not serve as an argument to justify
the existence of a violation. Conversely, in the case Eldridge
33. Case of 1954. Within this case, the Supreme Court of the United States combined five
cases under the case of Brown. See also the case Roberts v. City of Boston in 1849.
34. Communication 1/1984 (29 September 1988). See also F. H. Zwaan-de Vries v. The
Netherland, Communication n182/1984, U.N. Document CCPR/C/29/D/182/1984 of 9
April 1987.
v. British Columbia Attorney General, the court held that

not providing sign language interpretation in the case
of medical services for deaf people in the State of British
Columbia, which costs only 0.0025% of the provincial budget,
constituted a violation of the right to health.
37] In relation to vulnerable groups such as children with
disabilities (children with autism), the European Committee
of Social Rights, in the case International Association Autism
Europe v. France37 found that the proportion of children
with autism being educated in schools in France (special or
general schools) was lower than that of other children, and
that it would take 100 years to erase the deficit in the official
waiting list of children in need. The Committee ruled that
the government was permitted some flexibility but realization
of social rights must occur within a reasonable time, with
measurable progress and to an extent consistent with the
maximum available resources. But concluded that the
Governments overall lack of progress in this area constituted
a violation of the Charter on the right to education of
children, of persons with disabilities, and of Youth, as well as
the right of all persons to non discrimination.
Right to prior consultation

The right to prior consultation was recognized in ILO Convention
169 on Indigenous and Tribal Peoples. It has significant
implications for Latin American countries because of their
multicultural and ethnic character. The Convention states that
Governments must consult these peoples through appropriate
procedures and representative institutions when applying the
Conventions provisions, and ensure their participation in the
process of development. In order to achieve this, they must
consult the community in order to ensure that indigenous and
tribal peoples have the right to decide their own priorities.
The consultation should be undertaken in good faith and in
a form appropriate to the circumstances, with the objective
of achieving agreement or consent to the proposed measures.
This principle has been exported to national legal frameworks
and integrated into judicial review strategies to fight
discrimination and exclusion. The Constitutional Court of
Colombia has widely developed prior consultation as a principle
of integration in its rulings T-131 of 2006 and C-030 of
2008, particularly in relation to minority groups.
38] The principle of equal protection has been related to

reasonability in South Africa. Indeed, section 9(1) of the
South African Constitution provides that: Everyone is equal
before the law and has the right to equal protection and
benefit of the law. In Prinsloo v. Van der Linde and Another,38
the Constitutional Court defined the standard for testing the
validity of differentiation, in terms of section 9(1), as that of
rationality, and stated that the State is expected to act in a
rational manner when presented with forms of differentiation
35. CERD/C/59/D/11/1998.
37. International Association Autism Europe v. France, Complaint n13/2002.
36. Adopted 25 May 2009.
38. [1997] ZACC 5; 1997 (3) SA 1012 (CC); 1997 (6) BCLR 759 (CC).
42
Chapter III
in order to avoid any arbitrary action or manifest naked

preferences that serve no legitimate governmental purpose.
The court stated that the purpose of equality is to ensure
that the State is bound to function in a rational manner. The
same kind of approach has been developed in Canada through
the developments of section 15 of the Canadian Charter39 and
throughout cases presented to the Canadian Supreme Court.40
39] In addition to the obligation to take steps to advance
the realization of non-discrimination and equal protection,
the CESCR has affirmed that the obligation of compliance with
minimum core obligations is also considered as an obligation
of immediate effect.41
the core content of ESC rights is not the same as the minimum
State obligations. While minimum core obligations are related
to the State party and to their compliance with international
obligations framework, the minimum core content is related
to the substance of the right.45
43] The theory of the minimum core content validates the
definition of poverty as a human right. Since the core elements
of a human right are intimately linked to human dignity, and
poverty hits the substance of the right, a violation of the
core content of an ESC right would also provoke, in certain
cases, an effect on poverty and poverty will also at the same
time provoke a violation of human rights.
4. The minimum core approach to 5. The progressive realization

ESC rights
of ESC rights
40] The UN and the CESCR, in particular, developed the
minimum core approach to clarify the obligations that derive
from ESC rights. The minimum core approach is attached to
the minimum essential levels of such rights and describes
a situation of well-being: a platform that means freedom
from threats.42 The obligations to protect, fulfil and promote
are pertinent to defining the content of the rights. Once
this content has been defined it is possible to establish
the minimum content, which will embody the obligations
imposed on the State. This relationship between content and
obligation is one of the main focuses of this manual.
41] The Committee has developed the principle of minimum
core content, stating that this constitutes a minimum
standard to be fulfilled by States,43 no matter the situation
of conflict, emergency or disaster. It should be effectuated
even in cases of financial constraints, particularly in order to
protect the most vulnerable groups of society.44 Without this
minimum, a right loses its raison dtre.
42] The Committee has begun defining the core obligations
of rights, for example, in the case of the right to the highest
attainable standard of health (developed further in the
specific chapter of this manual). It is important to clarify that
39. Section 15 states that: (1) Every individual is equal before and under the law and
has the right to equal protection and benefit of the law without discrimination and,
in particular, without discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability. Paragraph 2 adds that subsection 1
does not preclude any law, programme or activity that has as its object the amelioration
of conditions of disadvantaged individuals or groups.
44] ESC rights entail aspects that should be progressively

developed towards full realization. Indeed, progressivity leads
to an open-ended process which includes the concretization
of different steps of advancement of the right. Progressive
realization of ESC rights is the cornerstone concept of ICESCR.
Furthermore, the progressive realization of ESC rights is
a useful tool to measure and follow up the progress made
in advancement of the rights. It is a planning tool for the
development of policy and programme components to combat
poverty. For example, this has been clearly demonstrated in
the initiatives related to the advancement of the right to
adequate food. The FAO in this sense, has developed this
approach and affirmed that: the non-realization of human
rights is not only a frequent result of poverty but also one of
its major causes, which means that working to realize these
rights is vital for combating poverty.46
45] Article 2, para 1 of the Covenant of ESC rights recognizes
the gradual achievement of the implementation of ESC rights
by States, stating that each State party to the present
covenant undertakes to take steps, individually and through
international assistance and cooperation, especially economic
and technical, to maximum of its available resources, with
a view to achieving progressively the full realization of the
rights recognized in the present Covenant by all appropriate
means, including particularly the adoption of legislative
measures.
40. Law v. Canada, Minister of Employment and Inmigration 1999 1 S.C.R. 497; Grosselin v.
Quebec (Attorney General) case, (2002) 4 S.C.R 429. Andrews v. Laws Society of British
Columbia 1989 1 S.C.R.; R v. Keegstra 1990 3 S.C.R 697; and New Brunswick v. G (J)1999
3 S.C.R.
41. See Committee on Economic, Social and Cultural Rights, Report on the twenty-fifth,
twenty-sixth and twenty-seventh sessions, UN Doc E/2002/22, para. 17.
43. General Comment n3, para. 10.
45. For further reading: A. Chapman, The status of efforts to monitor economic, social and
cultural rights, in S. Hertel and L. Minkler (eds) Economic Rights: conceptual measurement
and policy issues, Cambridge University Press, 2006, p. 154; A. Chapman and S. Russell
(eds) Core Obligations: building a framework for economic, social and cultural rights,
Antwerp/Oxford/New York, Intersentia, 2002.
44. Ibid, paras 11 and 12.
46. FAO, the right to food in practice: implementation at the national level, Rome, 2006, p. 3.
42. See Anderseen, quoted by Bilchitz p. 188, ref. 27.
43
Chapter III
46] From analysis of Article 2 the following elements can be

derived:
(1) Progressivity is linked to the effective enjoyment of
the right. Progressivity thus requires the inclusion of
all members of society which should enjoy the right.
Nevertheless, progressivity is not achieved by adding
numbers of persons to the realization but by integrating
people in its realization.
(2) Progressive realization requires time and efforts to move
as expeditiously and effectively as possible towards
full realization of the right. The State should aim to
implement policies, programmes, plans and resources in
order to achieve full realization. Measures should be thus
deliberate, concrete and targeted.
(3) Progressive realization implies the necessity of
monitoring to measure achievements, and detect failures,
gaps or retrogression. NGOs have a crucial role to play in
identifying practices, covering lacks in State protection,
gathering data, and providing first-hand relief, especially
for marginalized and vulnerable groups.
(4) Progressive realization also means strengthening
cooperation. In its General Comment n3, the Committee
drew attention to the obligation of all States parties
to take steps, individually and through international
assistance and cooperation especially economic and
technical towards the full realization of the rights
recognized in the Covenant. For example, the Voluntary
Guidelines published in 2004 by the Food and Agriculture
Organization of the United Nations (FAO)47 provided an
additional instrument to combat hunger and poverty,
focusing on the progressive realization of the right
to food. In order to accelerate the attainment of the
MDGs, the Voluntary Guidelines represent an attempt by
governments to interpret the right to food and include
recommendations for actions to be undertaken in order
to accelerate its realization.
47] It is important to underline that scarcity of resources
does not excuse a State from undertaking steps towards
the full realization of a right. The minimum core of a right,
the non-discrimination and equal protection principles and
non-retrogressive measures are excluded from the notion
of available resources. They should be guaranteed with no
limitation. The government should be able to demonstrate
that it has effectively used the available resources in a
manner that best realizes these rights. States will be therefore
be monitored in relation to the progress made.
48] But how to measure progressive realization of the right?
It is a difficult task to measure the progressive realization of
a right. Some proposals have emerged relating monitoring
of progressive realization to the obligations derived from
Article2 of the Covenant.
47. Adopted by the 127th session of the FAO Council in November, 2004.
44
Proposals include evaluation of:

Human rights monitoring (measures which permit
policymakers and other actors to monitor the progressive
realization of the rights);
Adjudication: measuring ESC rights through analysis
of case law that implements rights and advances
interpretation of their content at the national level;
Assuring non-discrimination, and
Fixing accountability: statistics and tools to measure
implementation.48
49] Others proposals include analysing the implication of
Article 2 of the ICESCR for monitoring and accountability
in relation to the progressive realization of ESC rights, and
mention the following tools of measurement:

The core obligation approach

The violation approach49
Budget analysis, and
The role of indicators and benchmarks.50
50] NGOs have fully developed the violation approach.

Nevertheless, their active participation in providing other
kinds of knowledge should be supported to ensure their active
participation in developing coordination of the advancement
of ESC rights. NGOs provide useful developments and crucial
know-how. Their work, knowledge and actions constitute a
useful resource for clarifying and monitoring the progressive
realization of ESC rights.
51] Today, interpretations of the progressive relation of rights
are developed by courts, thus placing pressure on States to
act with a view to the full realization of those rights. In the
landmark case Bhe v. Magistrate Khayelitsha & Ors.,51 which
includes a total of three others cases (Bhe, SAHRC, Shibi)
related to discriminatory legislation in South Africa, based on
race, gender and origin, the South African Court struck down
the legislative framework of regulation of intestate deceased
estates of black South Africans. Progressive realization of the
right constituted in this case a challenge since it entailed the
building of an entire legal framework of protection.
52] The Grootboom case provides another clear example of
the challenge of the concept of progressive realization. Taking
into account the 2.2 million homeless in South Africa, the
South African Constitutional Court stated in this regard that
48. See the author of this proposal, C. Apodaca, Measuring the progressive relation of
economic and social rights, in S. Hertel and L. Minkler (eds) Economic Rights: conceptual,
measurement and policy issues, Cambridge University Press, 2007, pp. 16970.
49. The violation approach is critized by A. Chapman in: A violation approach for monitoring
the International Covenant of Economic, Social and Cultural Rights, Human Rights
Quarterly, 18(3) pp. 2366; and A. Chapman and S. Russell (eds) Core Obligations:
building a framework for economic, social and cultural rights, Antwerp/Oxford/New York,
Intersentia; M. Sepulveda, The Nature of the Obligations under the International Covenant
on Economic, Social and Cultural Rights, Antwerp/Belgium, Intersentia, 2003, Alston
2005, who propose a obligation approach instead a violation approach.
50. Proposal of A. Chapman, The status of the efforts to monitor economic, social and
cultural rights, in Economic Rights: conceptual, measurement and policy issues, op cit,
pp. 15164.
51. 2005 (1) BCLR 1 (CC), 15 October 2004.
Chapter III
the right to housing could not be realized immediately for

everyone, and noted that housing should be available not only
for a larger number of people but to a wider range of people.52
After clarifying the meaning of progressive realization, the
court declared a violation of the right to adequate housing.
But the court did not define a precise time period to implement
a policy to redress the situation of the homeless. This led to
a period of transition, prolonging the violation. In addition,
the subsequent actions to ensure progressive realization of
the right included only the Grootboom community, and not
the wider homeless community.
53] Finally, the TAC case reveals the consequences of
progressive realization of rights in a case related to restricted
access only by research and training sites to the drug
Nevirapine, which would prevent HIV/AIDS mother to child
transmission at birth. The, Because of the more than 5 million
persons attained by in South Africa, the TAC decision was
crucial. The court concluded that the government programme
was unreasonable and requested the modification of the entire
policy, extension of access to the medicine, and the widescale enlargement of the testing and counselling facilities to
institutions and hospitals. The court ordered the government
to implement these actions and fulfil its obligations without
delay.
54] However, progressive realization raises the question of the
extent of the efforts and standards that should be undertaken
by the State.53 A violation of the right would still exist where
the State does not take the necessary and effective measures
in order to advance towards the full realization of the right.
6. The prohibition of
retrogressive measures
55] This obligation derives from the above-mentioned. The
State is not allowed to adopt any measures that will reduce the
already attained enjoyment level of the right. Nevertheless,
this is a presumption that includes certain exemptions.
When the State introduces retrogressive measures, it is
invited to explain that those measures were adopted after
examination of the wide range of possibilities, and that no
other alternatives were available or applicable in the context
of the full utilization of the maximum available resources.54
56] In cases where a policy or measure would reduce the

enjoyment of the right, this will not instantaneously generate
a violation of the right and constitute a retrogressive measure.
States must have acted with intention, deliberately and with
negligence. At the domestic level, for example, courts have
established that decisions adopted by domestic bodies that
could affect human rights should be duly justified. Otherwise,
these would constitute arbitrary decisions.55 In relation to
the right to work, for example, in a case related to a pregnant
worker woman subject to rotation, the Bolivian Supreme
Tribunal stated that the rotation of a worker is a valid measure,
but not diminishing his or her salary.56 The Bolivian tribunal
stated that the retrogressive measure in this particular case
offered inadequate conditions for the nasciturus.
7. Maximum available
resources clause
57] Due to the pervasive assumption that economic, social
and cultural rights require the direct provision of resources
by the State (progressiveness), the Covenant included a
clause entitled the maximum available resources clause in
the same Article 2, para. 1. ESC rights depend in some cases
on the provision of services and goods by states. However,
this clause provokes debate since it does not specified how
much the word maximum demands, nor does it say what the
word available means. Thus, determining the availability of
resources can become a complicated task for governments
since it demands political willingness, but also coherence and
budgeting.
58] Nevertheless, courts have assessed the positive measures
and ordered governments and other public institutions to take
concrete steps and to allocate resources towards fulfilling
those rights. In Latin America, for example, Constitutional
Courts have defined the minimum requirements of benefit
programmes, delineated steps, and ordered allocations in
their jurisprudence.
59] But courts and tribunals encounter limitations on
fostering justiciability since they do not necessarily possess
the expertise required for developing justiciability of ESC
rights. Courts still have a responsibility to uphold and protect
fundamental rights, but need the collaboration of competent
actors placed closer to the field.
52. See Grootboom case op cit, para 45.
60] The tension between the availability of resources and the

realization of minimum core content of rights can be resolved
53. In relation to the progressive realization of rights and the correlative obligation of
States in the Grootboom and TAC cases see, for example, M. Stuart, Left out in the
cold? Crafting Constitutional Remedies for the poorest of the poor, SAJHR, 21, 2005, pp.
21540; See also M. Heywood, Preventing mother-to-child HIV transmission in South
Africa: background, strategies and outcomes of the Treatment Action Campaign case
against the Minister of Health, 2003, 19 SAJHR 278 at 300.
55. Cf. Palamara Iribarne case, supra note 72, para. 216 and YATAMA case, supra note 86,
para. 152. Also, cf. Garca Ruiz v. Spain [GC], n30544/96, 26, ECHR 1999-I; and Eur.
Court H.R., Case of H. v. Belgium, Judgment of 30 November 1987, Series A n127-B,
para. 53.
54. General Comment n3, para. 9.
56. Constitutional Tribunal of Bolivia ruling 310/2000-R, 6 April 2000.
45
by viewing progressive realization as an open-ended process

that will require continuous efforts. The European system
provides examples on how intentional goals become minimum
obligations for progressive implementation.57 In the abovementioned case, International Association Autism Europe v.
France, the European Committee of Social Rights found that
financial restrictions do not free the State from its obligations
related to human rights.
61] The African Charter does not elaborate at length on the
available resources clause and the progressive realization
of rights in relation to ESC rights. Nevertheless, certain
cases support the necessity of rendering the African Charter
effective, and seem to impose obligations.58
62] Nevertheless, in the case Purohit and Moore v.
Gambia,59 related to a Gambian legislative regime for mental
health patients, the African Commission analysed the right
to enjoy the best attainable state of physical and mental
health in relation to disabled persons, and stated that one
cannot turn a blind eye to the scarcity of resources in Africa
when defining and advancing ESC rights. The Commission,
deeply aware of the poverty situation in African countries,
expressed its concerns about the feasibility of dispensing
healthcare and read into the right to health the qualification
of available resources. The Commission asked the country of
Gambia to replace the legislative health regime and urged
the authorities to provide adequate medical and material care
for persons suffering from mental health problems, stating
57. See J. Donnelly, The West and economic rights, in S. Hertel and L. Minkler (eds) Economic
Rights: conceptual, measurement and policy issues, Cambridge University Press, 2007, pp.
5051.
58. For example, Free legal Assistance Group and Others v. Zaire, SERAC case, among
others.
59. AHRLR 96 ACHPR (2003).
Chapter III
that the right to health facilities and access to goods and

services shall be guaranteed to all without discrimination of
any kind.60
63] The Soobramoney case61 in South Africa forms the basis of
a discussion on the meaning of this obligation. The case centred
around an unemployed man suffering from heart and vascular
diseases and chronic renal failure. Mr. Soobramoney asked the
government to order to the hospital to provide him with dialysis
treatment. However, the court dismissed the plaintiffs appeal
citing lack of availability of resources. It further stated that
a favourable decision would generate a collapse of the health
system, and that due to the limited resources the hospital had
adopted a policy of admitting only those patients who could be
cured within a short period of time.
64] The Colombian Constitutional Court (CC) developed the
protection of ESC rights, such as the right to health, through
the tutela,62 by integrating previously excluded medical
services or special medication into health plans.63 The costs
of healthcare services, however, have vastly increased, and
although the Colombian CC still protects ESC rights, some
have criticized the scarcity of resources resulting from these
expenses, noting that they go beyond the maximum available
resources.
60. See also the case Autism Europe v. France, 4 November 2002, related to the implementation
by France of statutory instruments concerning provision of education to persons with
disabilities. The European Committee of Social Rights stated that State Parties must
take measures to advance the right even when its implementation is complex, and that
States shall do so within a reasonable time with measurable progress and to an extent
consistent with the maximum use of available resources. The case represents the first
collective complaint relating to the right to health facilities in Europe. See also the
Soobramoney, TAC and the Khosa cases, among others.
61. Soobramoney v. Minister of Health Province of Kwazulu-Natal 1998 (1) SA 765 (CC)
(hereinafter Soobramoney case).
62. Writ of protection of fundamental rights, presented to any Colombian judge, who will
decide the urgent matter of the plaintiff within a maximum of ten days (see Chapter 2).
63. For example, providing special attention for people with HIV-AIDS in ruling T-328 de
1998, and for people with cancer in ruling T-283 de 1998, among others.
Exercises
1) Explain this affirmation: the duty of progressive realization is a mixture.

2) Analyse the Purohit and Moore v. Gambia and the Soobramoney cases. What elements can be extracted in relation to
the role of judges? What can be said about the marge of appreciation of the judiciary?
3) What are the legal, economic, and political consequences of the maximum available resources clause? Justify your
arguments on the basis of the case Minister of Health v. Treatment Action Campaign (TAC).
46
Education
The right to education

47
1. Definition of the right to education
48
2. Normative content of the right to education
a. The 4A System
b. Progressive realization of the right to education
c. Non-discrimination and equal protection

Education without discrimination on grounds of race

Education and nationality
Education without discrimination based on gender
Education of minorities
Children with disabilities
Education in conflict situation
Education for people in poverty
Equality of opportunity
53
3. Human rights approach to Education for All
54
4. Human rights education
56
5. Strategies for justiciability
UNESCO/Petterik Wiggers
Chapter IV
The right to
education
Despite international recognition of the right to education, a number of different legal regimes
still define education as a service. In this chapter, education is defined and conceptually analyzed
as a right. Today, the right to education is one of the most developed and well-defined ESC rights.
As a human right in itself and indispensable for the exercise of other human rights, the right
to education has close linkage with the right to development, and is a powerful tool in poverty
reduction strategies. However, in spite of its level of recognition, this right is still denied to some
75 million children of primary school age, 55% of whom are girls.* Millions of people around
the world are still illiterate and exposed to poverty. The UNESCO Education For ALL (EFA) Global
Monitoring Report 2010: Reaching the Marginalized locates education in the front line of the
fight to combat inequality. Education is thus a precondition for the advancement of social justice,
as those left behind face the prospect of diminished life opportunities in a variety of spheres,
including employment, health and participation in political processes that affect them. The
Education for All strategy on inclusive education is crucial to the fight against marginalization
and exclusion of the most vulnerable. The avoidance of all forms of exploitation and forced labour
of children, in particular, is of crucial importance. The right to education is an integral part of
UNESCOs mission, and central to EFA process. The Constitution of UNESCO expresses the belief
of its founders in full and equal opportunities for education for all. The Organization actively
supports the view that a rights-based approach to the development of education is a prerequisite
for realizing EFA.
1. Definition of the right to

education
1] Education increases the number of possible ways of
escaping poverty. Defining education in terms of rights
enables a right-holder to know about his or her entitlements,
and thus provides the capacity to claim for a violation of the
right in situations of misrecognition or disrespect.
2] Education is described as an overarching right because
its enjoyment empowers other human rights. It comprises not
only formal schooling, but also all learning processes provided
by life experiences that enable a person to develop their
skills, including capacities, talents, abilities and personality.
* Education for All Global Monitoring Report 2009.
Education covers spiritual, cultural and intellectual learning

processes.
3] Education is therefore both a civil and political right, and
an economic, social and cultural right. Indeed, education
as a civil and political right requires governments to allow
the establishment of schools respecting freedom of and in
education. Education as a social and economic right requires
governments to ensure that free and compulsory education is
available to all school-age children. Education as a cultural
right proclaims the respect of cultural diversity with regard to
the inclusion of minorities, their languages and an education
in accordance with their customs and values. It is an
obligation of Governments to promote the right to education
which is universal and does not admit any exclusion or
discrimination. It needs to be upheld more vigorously and
its inclusive dimensions need to be brought into prominence
47
Chapter IV
in order that all those who remain deprived of it become its

beneficiary.1
n13 adds stating that States parties are obliged to prioritize

the introduction of compulsory, free primary education.3
4] Article 26 of the Universal Declaration of Human Rights

(UDHR) established the foundations for the right to education,
setting out the degrees of responsibility derived from each
level of education. It stated that elementary education shall
be free and compulsory, technical and professional education
available and higher education equal accessible. This article
also mentions the importance of human rights in education
and prescribes the principle of parental freedom of instruction
for children, also referred to as freedom of education.
7] Moreover, the Committee on Economic, Social and Cultural

Rights (CESCR) has played an important role in developing
the normative content dedicated to this right through its
General Comments n11 and 13. The CESCR has also declared
that both general comments should be considered jointly.
5] To affirm the right to education, States have also adopted

a number of international instruments developing different
dimensions of this right. Among them we can enumerate:
The ILO Convention Concerning Indigenous and Tribal
Peoples; The UNESCO Convention against Discrimination in
Education; The International Covenant on Civil and Political
Rights; The International Covenant on Economic, Social and
Cultural Rights; The Convention on the Elimination of All
Forms of Discrimination against Women; The Convention on
the Elimination of Racial Discrimination; The Convention on
Intolerable Forms of Child Labour. The Convention on the
Minimum Age for Employment; The Convention on the Rights
of the Child; The Convention on Technical and Vocational
Education the International Convention on the Protection
of the Rights of All Migrant Workers and Members of their
Families and the Convention on the Rights of Persons with
Disabilities, among many others.2
The legal framework of the right to education carries
international obligations.
6] Among all the prescriptions related to the right to
education, Articles 13 and 14 of the International Covenant
on Economic, Social and Cultural Rights (ICESCR), as well as
Article 3, 4 and 5 of the Convention against Discrimination
in Education are among the most comprehensive. Indeed, not
only do they develop the content of the right, but they also
define the obligations derived from each level of learning.
UNESCO played an important role in the drafting of these
articles and places emphasis in particular on Article 13,
setting international educational standards that develop and
monitor the implementation of this right. Article 13 of the
Covenant and Article 4 of the Convention impose compulsory
free and available primary education for all. General Comment
1. Inclusive dimensions of the right to education: normative bases (UNESCO 2008).
2. The UNESCO Recommendation against Discrimination in Education (1960), the UN
Declaration on the Promotion among Youth of the Ideals of Peace, Mutual Respect
and Understanding Between Peoples (1965); UNESCO Declaration of the Principles of
International Cultural Cooperation (1966); The UNESCO Recommendation concerning
the Status of Teachers (1966); The UNESCO Recommendation Concerning Education
for International Understanding, Co-operation and Peace and Education Relating to
Human Rights and Fundamental Freedoms (1974); The UNESCO Declaration on Race and
Racial Prejudice (1978); The UNESCO Recommendation on the Development of Adult
Education (1976); The UN Declaration on the Rights of Persons Belonging to National
or Ethnic, Religious and Linguistic Minorities (1992); The UNESCO Recommendation on
the Recognition of Studies and Qualifications in Higher Education (1993); The UNESCO
Recommendation concerning the Status of Higher-Education Teaching Personnel (1997);
The UNESCO Universal Declaration on Cultural Diversity (2001); The UNESCO Revised
Recommendation concerning Technical and Vocational Education (2001) and The UNESCO
Convention on the Protection and Promotion of the Diversity of Cultural Expressions
(2005).
48
2. Normative content of the

right to education
8] Like all human rights, the right to education imposes three
levels of obligations on states: the obligation to respect,
protect and fulfil. The obligation to respect requires states
to avoid measures that hinder or prevent the enjoyment of
the right to education. The obligation to protect requires
states to take measures that prevent third parties from
interfering with the enjoyment of the right to education.
In turn, the obligation to fulfil incorporates an obligation
to facilitate and to provide. Facilitation requires states to
take positive measures that enable and assist individuals and
communities to enjoy the right to education. States are aimed
to provide primary education for all as an immediate duty of
all States parties.4 It is incumbent upon States to incorporate
into domestic legal order their obligations under normative
instruments and to give effect to these in national policies
and programmes. In order to achieve EFA, it is imperative
to intensify UNESCOs normative action and monitor more
effectively the right to education.
9] The full realization of the right to education is dependant
upon the effective enforcement of States obligations. When
the right to education is violated citizens must have legal
recourse before the law courts or administrative tribunals.
Enforcement and justiciability of the right to education
primarily depends upon national legal system. The judiciary
has an essential role in upholding the right to education
as an entitlement. Where they exist, national human rights
institutions as well as Ombudsmen also have a role to play
empowering the right-holders.
a. The 4A System
10] The Committee has provided clarification on the scope and
attributes of the right to education through the so-called 4A
system framework.5 This framework analyses the obligations
3. See General Comment n13, at para. 51.

4. Ibidem.
5. See General Comment n13, paras 6 and 7.
Chapter IV
related to the right by responding to four features in each

level of learning: availability, accessibility, acceptability
and adaptability. This 4A system has been further developed
and specified by the former Special Rapporteur6 who has
added a fifth feature, affordability, which is sometimes
incorporated within accessibility.
11] Available education relates to the obligation of the State
to facilitate the right to education by providing sufficient
quantitative institutions, teachers and programmes with a
view to operationalization of the right. Availability includes:
available infrastructures (schools with water and sanitation
facilities, classrooms, libraries, etc); available educational
materials and equipment (computer facilities etc.); and
available teachers (salaries, trainings, etc.). Furthermore,
availability requires the non-closure of private schools as well
as the development of school systems.
12] An example of how the obligation of availability has been
applied by Courts is analyzed in the case Campaign for Fiscal
Equity v. State of New York et al.7 According to the Supreme
Court of the State of New York, the teaching within the State
was inadequate: large class sizes negatively affected student
performance in New York City public school and such schools
were deficient in instrumentalities of learning (including
libraries and computers). The Court further held that, whether
measured by the outputs or the inputs, New York City school
children were not receiving the constitutionally-mandated
opportunity for a sound basic education. The Court ordered
the defendants to take all necessary steps to implement
an operational funding plan (including transportation
costs, materials, methodology, capital facilities and school
expenditures) to provide New York City with the minimum,
gradual operations funding of US$14.03 billion for Year 1
(20052006), US$15.44 billion for Year 2 (20062007),
US$16.84 billion for Year 3 (20072008) and 18.25 billion for
Year 4 (20082009) in no later that ninety days from the date
of entry of the order. These steps were undertaken to ensure
basic education for all.
13] Accessible education refers to the requirement that
schools and educational systems should be accessible to all
without discrimination of any kind and should place special
emphasis on vulnerable groups. It requires the existence of a
fellowship system to provide help to special groups on the basis
of non-discrimination and equality. The CESCR has clarified that
accessibility includes two elements: physical accessibility
and economic accessibility. Physical accessibility relates
to the ability to access education (transportation, existence
of schools in rural areas, participation of the community,
technology facilities, and online education). Economic
accessibility refers to the affordability of education provision.
States are obliged to provide primary education immediately
6. E.CN.4/1999/49; see also Katarina Tomasevski, Human Rights Obligations in Education:
the 4A Scheme 7 (2006).
7. 719 N.Y.S.2d 475.
free of charge and to progressively provide free secondary and

tertiary education. It is important to underline the point that
indirect costs could be permissible. However the Committee
has not specified what indirect costs mean.
14] In the case Free Legal Assistance Group and Others v.
Zaire,8 a claim brought by four NGOs against former Zaire
(now the Democratic Republic of the Congo), the African
Commission on Human and Peoples Rights (ACHPR) stated
that government closure of universities and secondary schools
as a result of a situation of financial negligence during a
period of internal crisis violated the right to education under
the African Charter on Human and Peoples Rights (Article 17).
15] In the case Unni Krishnan J.P. & Ors. v. State of Andhra
Pradesh & Ors9 the Supreme Court of India, ruling on the
basis of elements of Article 13 of the ICESCR, stated that the
States obligation to provide higher education requires it to
take steps to the maximum of its available resources with
a view to achieving progressively the full realization of the
right of education by all appropriate means. Consequently,
after the age of fourteen, a persons right to higher education
is subject to the limits of economic capacity and development
of the State.
16] In another case, the Court of India found that accessibility
to education should be realized for all people, rich or poor.
For this reason, the Court held that a private institution,
tied by the same requirements of the State, cannot charge
higher tuition fees than those established for government
seats. The Court found thus that a capitation fee in this case
made education unaffordable and therefore not accessible to
the poor, and that the system was arbitrary and contrary to
the equality clause of the Directive Principle of State Policy
(Article 14) (case Mohini Jain v. State of Karnataka).10
17] Acceptability relates to the appropriateness and
quality of education. It refers to the standards that should
be attained and constantly improved in curricula, teaching
methods, educational programmes, tools and infrastructures.
Acceptability also requires that teaching and learning be
culturally appropriated so as to be appropriate for minorities
in terms of language, content and methods.
18] The Court of the Economic Community of West African
States (ECOWAS) found the Universal Basic Education
Commission of Nigeria responsible for implementing education
in the country in the recent case SERAP v. Nigeria.11 The
Court stated that the Commission failed to ensure quality
education due to a lack of adequate implementation of
Nigerias Basic Education Act and Childs Rights Act of 2004
8. Comm. n25/89, 47/90, 56/91, 100/93.
9. Op cit.
10. 1992 AIR 1858.
11. Registered Trustees of the Socio-Economic Rights and Accountability Project (SERAP) v.
Federal Republic of Nigeria and Universal Basic Education Commission, Suit no ECW/CCJ/
APP/0808, 27 October 2009 (admissibility).
49
Chapter IV
under the general framework of the African Charter on Human

and Peoples Rights (ACHPR). This case is important since it
clarified the justiciability of the right to education, developed
the right to quality education, and confirmed the locus standi
of NGOs for bringing cases of public interest before the Court.
19] The adaptability of education consists of the obligation
of governments to provide flexible curricula and plans for all
communities. Its main goals are respect of human dignity
and the development of the human personality to help people
respond to changing societies. Education should respond
and adapt to the best interests of each child. Adaptability
involves the interrelatedness of all human rights through
education and education through all human rights. It
demands a constant effort to integrate educational strategies
in all sectors, planning programmes and communities.12
20] In a recent case concerning a massacre in Guatemala13,
which affected hundreds of displaced victims of the internal
war, the Inter-American Court of Human Rights ordered
reparation measures that included measures of satisfaction
such as establishing development programs (on health,
education, and infrastructure) in the affected communities.
Such programs included providing such communities with
educational programs in the native language of the victims
(maya ach).14 Authorities from Guatemala are required to
supply of teaching personnel trained in intercultural and
bilingual teaching for primary, secondary and comprehensive
schooling in these communities.15 The Court gave a five-year
period for the full-implementation of the reparation program.
It also established that the state would report each year on
the developments in the implementation of the measures
ordered.16
21] The Supreme Court of India stated, for example, that
the right to education was linked to the dignity of life by
reasoning that to sustain life a human being requires the
fulfillment of all the enabling rights. For this reason, in the
case Mohini Jain v. State of Karnataka,17 the Court stressed
that people are only able to obtain a dignified life in India
through education.
22] In the recent case D.H. & Ors v. the Czech Republic,
supported by the NGOs Interights and Human Rights Watch,
the European Court of Human Rights (ECHR) examined a
12. UNESCO Convention on Technical and Vocational Education (1989) contains in its Article
3 the idea that education programmes need to be adapted to the characteristics of
the receiving population groups: The Contracting States agree to provide and develop
technical and vocational education programmes that take account of the educational,
cultural and social background of the population concerned and its vocational
aspirations. It also puts forth the idea that education programmes shall be directed to
the protection of the common heritage of mankind.
13. Inter-American Court of Human Rights Plan de Snchez Massacre v. Guatemala 19 Nov.
2004.
14. Mnica Feria, Justiciability of Economic, Social and Cultural Rights in the Inter-American
System of Protection of Human Rights: Beyond Traditional Paradigms and Notions, Human
Rights Quarterly Volume 29, Number 2, May 2007, pp. 431-459.
15. Plan de Snchez Massacre v. Guatemala, op.cit para. 110.
16. Ibidem para. 111.
17 (1992 AIR 1858).
50
complaint of racial discrimination related to the assignment

of Roma children to special schools for the mentally
disabled following psychological tests designed to assess
their intellectual capacity. The applicants alleged that they
had been discriminated against in the enjoyment of their
right to education by reason of their race, ethnic origin and
colour as a national minority. They pointed out that Roma
children are systematically segregated to special schools
whose educational standards are substantially inferior to
those of primary schools in the enjoyment of the right to
education. The ECHR ruled in favour of the applicants and
noted that Roma people have a turbulent history and
constant uprooting. The Court also argued that indirect
discrimination whereby a general policy or measure has a
disproportionate prejudicial effect on a particular group
is prohibited by the European Convention in the same way
as direct discrimination and confirmed a violation of article
14 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms, combined with Article 2
of its Protocol 1.
Core obligations of the right to education

Equal and non-discriminatory access to the right to
education
Free, compulsory and universal primary education
Accessibility to secondary education in its different forms
as well as technical and vocational education which should
be made generally available
Capacity- based access to higher education
Opportunities for continuing education and literacy
programme and life long learning
Minimum international standards of quality education
and teaching profession-Principle of parental freedom of
education -The obligation to take steps towards the full
realization of the right by designing and implementing a
detailed National Strategy (Educational Plan) including a
defined time schedule for implementation of the right to
education.
b. Progressive realization of the right to

education
23] The progressive realization of the right to education is an
important factor for achieving universal access to education.
As underlined in Chapter III of this manual and by the
Committee on ESC rights, the progressive realization of a right
imposes a duty to move as expeditiously and effectively as
possible towards the full realization of the right. Consequently,
progression of the right to education means that free and
compulsory education should be progressively expanded to
secondary and tertiary education. Any different interpretation
would imply a reduction of the full recognition of the right to
education in which all levels should be effectively provided
and realized.
Chapter IV
24] Accordingly, the immediate obligation for states in

relation to primary education is to:
(1) Provide universal, free and compulsory primary education,
and
(2) Draw up an Action Plan to define a framework for the
implementation of the right to primary education.
25] The general obligation consists of providing secondary
and tertiary education and ensuring tertiary education
is provided in an equal and accessible way. This does not
mean that secondary and tertiary education should not be
available in the same way as primary. The only difference of
interpretation is based on the fact that primary education
constitutes the bare minimum in the sense that it should
be immediately provided, be compulsory and free of charge.
Secondary and tertiary education should progress towards
the same goal of universality. Such an interpretation is in
line with the principles of Education for All and the Indian
case Maharashtra State Board of Secondary and Higher
Education v. K.S. Gandhi,18 which stated that the right to
education at the secondary stage was a fundamental right.
26] Following on from Article 14 of the ICESCR, states will
progressively ensure their duty by adopting an educational
plan of action within two years of the Covenants entry into
force in the State to secure free, universal and compulsory
primary education.19 The implementation of the plan should
take place within a reasonable period of time and should
be measured by indicators and benchmarks defined in the
National Education Strategy. For example, in the case
International Association Autism Europe v. France,20 the
European Committee on Social Rights stressed that when
the realization of a right is exceptionally complex and
particularly expensive,21 a government is permitted some
flexibility. However the realization of social rights must occur
within a reasonable time, with measurable progress and to
an extent consistent with the maximum available resources.
27] Even in the case of financial crisis and economic
recession, states cannot disregard their obligations and
should continue to undertake efforts towards providing
universal, free and compulsory primary education. Moreover,
international cooperation should play an essential role by
assisting states in situations of crisis. The participation of
civil society is vital at all stages: in the conception of the
plan, to provide guidance at the design and implementation
levels, and to ensure permanent accountability.
c. Non-discrimination and equal opportunities

in education
Education without discrimination on grounds of race
28] The Supreme Court of USA in the cases Brown v. Board
of education22 stated that a segregated school system denies
equal educational opportunities to minority group. And the
South African case Province of Mpumalanga Bel Porto School
Governing Body v. Premier of the Western Cap Province,23
concerned analysis of the validity and effects of implementation
of an educational policy that introduced reallocation of staff
by a provincial authority between black and white schools. The
case was presented by the appellants from a white school on
the basis of racial equity in educational systems. The appellants
argued that the policy was not well implemented and caused
inequality within the white schools. Even though the judges
did not conclude that discrimination had occurred with the
implementation of this policy in white schools, this decision
provided an important precedent for promoting equality and
tolerance among new generations in South Africa.
Education without
nationality
discrimination
based
on
29] Children, in particular, face situations of vulnerability

and discrimination, as in the Case of the Inter-American Court
Dilcia Yean and Violeta Bosica v. The Dominican Republic.24
This was one of the first cases in which violations of the right
to education were heard by a Court in relation to a case on
the right to education and the right not to be discriminated
on grounds of national origin. The petitioners were two girls
with Haitian origins but who were born in the Dominican
Republic. Despite their place of birth the authorities denied
them Dominican nationality. The petitioners argued that this
lack of nationality exposed them to the imminent threat of
expulsion. The Court asked the Government to facilitate access
to free elementary education by overcome the historical
barriers created by discriminative laws in birth record and
educational systems. The Inter-American Court ordered that
enjoyment of the right be guaranteed regardless of a childs
background by adopting precautionary measures. It further
imposed supervision of the decision by asking the State to
submit to the Court a report on the measures adopted.
Education without discrimination based on gender

30] In Hong Kong, a case clearly stated that discrimination
in educational systems in any form is not permissible, even
18. [(1991) 2 SCC 716].
19. See General Comment n11 (1999).
20. European Committee on Social Rights, Complaint n13/2002, Decision 4 November
2003.
21. International Association Autism Europe v. France para. 53.
22. Brown I, 347 US 483 (1954) and Brown II, US 294 (1955).
23. (2002) 9 BCLR 891 (CC).
24. 8 September 2005.
51
when a State argues that such discrimination is based on

difference of educational aptitudes between girls and boys.
Indeed, in the case Equal Opportunities Commission v.
Director of Education,25 three educational systems in Hong
Kong, namely the SSPA system, which evaluates and places
children into corresponding secondary schools, Internal
Assessment (IA) and an Academic Aptitude Test (AAT) that
place them into secondary schools, were shown to evaluate
students based on sex. The Court held that these actions
violated the Sex Discrimination Ordinance as well as the
international human rights obligations inscribed in the
Convention on the Elimination on All Discrimination of Women
(CEDAW). This precedent provided the basis for interpreting
sex discrimination under the standards established by CEDAW.
Following this decision in 2001, over 100 female students
were transferred to more favourable schools, and following
2002, the rankings and seat allotments were no longer based
on gender.
Education of minorities
31] In Canada, a State which protects minority-language
education rights, the Supreme Court upheld the claim of
Francophone parents living in five school districts in Nova
Scotia who applied for an order directing the authorities to
provide, out of public funds, homogeneous French-language
facilities and programmes at the secondary-school level.
In the case Doucet-Boudreau v. Nova Scotia, Minister of
Education,26 the Supreme Court imposed the duty on the
State to provide facilities for minority groups speaking
their own language and to report back on the progressive
implementation of these facilities.
Education of children with disabilities
Chapter IV
33] In Argentina, the case Lifschitz, Graciela Beatriz y otros

c. Estado Nacional s/sumarsimo28 involved the claim of a lowincome family with a disabled child to whom access to school
was denied because of lack of vacant places. The petitioner asked
for special financial support to allow access to private and special
education for her son. the Supreme Court decided in favour of a
disabled child and ordered the Government to provide a special
subsidy to allow him access to a private and special school.
Education in conflict situation

34] In the decision T-215 of 2002, the Constitutional Court
of Colombia protected the right to education of displaced
children for whom inscription in educational institutions had
been rejected due to their condition of displacement. The
Court highlighted the existence of an unconstitutional state
of affairs and ruled to protect the rights of the child in
special cases of internal displacement.
Education of people in poverty

35] In the decision C-560 of 1997 dealing with vouchers issue,
the Constitutional Court of Colombia held that they limit access
to education when they exceed the moderate and proportional
payment. It also held that everyone has the right to access to
education without discrimination included on the basis of its
economical capacity. The Court clearly affirms the equality of
opportunity in access to school. An excessive economic request
to be admitted in school violates the right to education while
pupils can be excluded only on an economical basis.
36] In the Case of Edgewood Independent School District
v. Kirby29 the Supreme Court of Texas studied the education
financial systems in Texas and concluded that the poor schools
lacked funds to ensure the right to education. The Court
observed that the wealthiest districts had 700 times more
property wealth per student than the poorest and concluded
that this constituted a violation of the Constitution of
Texas. The Court stressed that the financial systems did not
permit an efficient or effective education for every student
and concluded that there was a need to develop a new legal
framework to correct this disparity.
32] In the above mentioned case International

Association Autism Europe v. France,27 related to people
with disabilities, France acknowledged the failure to provide
adequate special educational services for people with
disabilities, accepting that the financial system did not
take into account the number of persons on the waiting
list. Despite the existence of programmes and allocations
currently being implemented, the petitioner, in this case the
Association Autism-Europe, found that it would take 100
years to erase the deficit on the official waiting list. For this
reason, the European Committee on Social Rights found that
France failed to provide the necessary special education and
argued that the definition of autism was too restrictive and
avoided integrating all people with disabilities within the
financial educational system.
37] In India, a petition was submitted under a Public

Interest Litigation (PIL), for the education of the children
of prostitutes in the case Gourav Jain v. Union of India.30
The Supreme Court held that the children of prostitutes have
25. N1555 of 2000.
28. Argentinian Supreme Court in Lifschitz, Graciela Beatriz y otros c/ Estado Nacional, 1506-2004.
26. 2000, 185 N.S.R. 2d, 246 (NSSC) and 2003 3.S.C.R. 3 (SCC).
29. 777 S.W. 2d 391 (Tex. 1989).
27. European Committee on Social Rights Complaint n13/2002.
30. Gourav Jain v. India, A.I.R. 1997 S.C. 3021.
52
Equality of opportunityy
Chapter IV
the right to dignity, equality of opportunity, care, protection

and rehabilitation without stigmatization. For this reason, the
Court ordered the creation of a Committee to draft a plan
focusing on the rehabilitation of such children and child
prostitutes, with periodic reports to be submitted to the Court.
38] In Argentina, the Administrative Court of Buenos
Aires, ruling in the Santoro case,31 stated that a decision
related to the transfer of a student between two schools was
arbitrary. In addition, the Supreme Court of Argentina revised
a collective claim related to non-compliance of a province
with the Federal Educational Act, which develops standards
related to equality in education.32 The Argentinean province
did not comply with the Federal Act and maintained its own
educational rules and standards. This resulted, for example,
in the invalidity at national level of diplomas issued by the
provinces educational scheme. The Court stated that this
scheme was not in accordance with the Federal Act and that
this would affect the right to education of children as well as
their right to access to working opportunities.
39] In the Indian case UnniKrishnan J. P v. State of Andhra
Pradesh,33 related to the obligation of the State to provide
education facilities within the economic capacity and
development of the citizens, the Indian Court declared that
education was a fundamental right and particularly stressed
that education of children up to the age of 14 years old was
fundamental. Through this decision, the Court could define
broader standards for State compliance in another sphere as
the eradication of child forced labour and encouraged the
advancement of the right in the landmark case M.C. Mehta v
State of Tamil Nadu & Ors.34
3. Human rights approach to

Education for All
40] Education for All (EFA) is an international initiative first
launched in Jomtien, Thailand, in 1990 to bring the benefits
of education to every citizen in every society. In order to
realize this goal, a broad coalition of national governments,
civil society groups, and development agencies, such as
UNESCO and the World Bank, committed to achieving six
specific education goals:
(1) Expand and improve comprehensive early childhood care
31. Buenos Aires Administrative Court of Appeals, Santoro, Francisco Roberto y otro v. GCBA
s/amparo, 05-14-2002.
32. Argentinian Supreme Court, Ferrer de Leonard, josefina y otros c. Superior Gobierno de la
Provincia de Tucumn, s/amparo, 08/12/2003.
33. 1993, 1 SCC 645.
34. M.C. Mehta v State of Tamil Nadu & Ors (1996) 6 SCC 756; AIR 1997 SC 699 where the
Court called for the enforcement of legislation prohibiting child labour. The Supreme
Court directed that children should not be employed in hazardous jobs in factories for
the manufacture of matchboxes and fireworks, and that positive steps should be taken
for the welfare of such children and to improve the quality of their life.
and education, especially for the most vulnerable and

disadvantaged children.
(2) Ensure that by 2015 all children, particularly girls,
those in difficult circumstances, and those belonging to
ethnic minorities, have access to and complete, free and
compulsory primary education of good quality.
(3) Ensure that the learning needs of all young people and
adults are met through equitable access to appropriate
learning and life-skills programmes.
(4) Achieve a 50 per cent improvement in adult literacy by
2015, especially for women, and equitable access to
basic and continuing education for all adults.
(5) Eliminate gender disparities in primary and secondary
education by 2005, and achieve gender equality in
education by 2015, with a focus on ensuring girls full
and equal access to and achievement in basic education
of good quality.
(6) Improve all aspects of the quality of education and ensure
the excellence of all so that recognized and measurable
learning outcomes are achieved by all, especially in
literacy, numeracy and essential life skills.
41] In 2000, the international community reaffirmed its
commitment to EFA at the World Education Forum in Dakar,
Senegal, and adopted two EFA goals which are also Millennium
Development Goals (MDGs). The Dakar Framework for Action
pledges to expand learning opportunities for every child,
youth and adult, and to meet targets in six areas by 2015.
The world education framework adopted the Dakar Framework
for Action including six specific goals:
(1) Expand early childhood care and education
(2) Provide free and compulsory primary education for all
(3) Promote learning and life skills for young people and
adults
(4) Increase adult literacy by 50 per cent, especially for
women
(5) Achieve gender parity by 2005 and gender equality by
2015, and
(6) Improve the quality of education.
42] In order to reach these goals a rights-based approach
to education for all has been defined in order to encompass:
The right of access to education, which comprises three
elements: the provision of education throughout all stages
of childhood and beyond, the provision of sufficient,
accessible school places or learning opportunities, and
equality of opportunity.
The right to quality education, which includes a broad
and inclusive curriculum, rights-based learning and
assessment, and a child-friendly, safe and healthy
environment.
The right to respect within the learning environment,
including respect for identity, integrity and participation
rights.
53
Chapter IV
43] On the same occasion, the international community

recognized the central role of civil society in the achievement
of the EFA goals and committed to ensure the engagement
and participation of civil society in the formulation,
implementation and monitoring of strategies for educational
development.35 The call for a genuine partnership, launched
at the Dakar Forum, through which civil society would be fully
associated with all stages of the realization of the EFA goals,
has therefore effectively given momentum to the structuring
and consolidation of EFA networks. Thus, more and more
countries now have national coalitions, often grouped into
regional and international networks. The launch of the Global
Campaign for Education, which contributed to stronger
collaboration and dialogue between NGOs and teachers
unions, has certainly contributed to the rapprochement that
has mainly taken place in Africa, but also in the Asia and the
Pacific, and Latin America and Caribbean regions.
44] For this purpose, UNESCO created a thematic mechanism
entitled the Collective Consultation of NGOs on EFA (CCNGO/
EFA) to reflect the recommendations of the Dakar Framework
for Action, and to facilitate reflection, permanent dialogue
and joint action between NGOs and UNESCO in the area of
Education for All (EFA). It ensures the follow-up of activities
and serves as the interface between the Dakar follow-up
programmes and mechanisms and CCNGO/EFA. At its annual
meeting CCNGO/EFA presents a report on ongoing activities
and initiatives in the region.
45] In the framework of UNESCOs mandate concerning
intellectual cooperation in the field of education and its
coordinating role of EFA partners, the purpose of CCNGO/EFA
is to foster partnership between NGOs and UNESCO with the
aim of:
Contributing to broadening the concept of EFA
Reinforcing knowledge of NGO roles and experiences in
EFA and promoting its
dissemination
Facilitating collective expression and cooperation among
the NGOs in the field of EFA
Facilitating the capitalization of conceptual contributions
and experiences of NGOs so that these are taken into
account in education content and policy formulation
Facilitating the consideration and mainstreaming of
NGO conceptual contributions and experiences in EFA
programmes
Facilitating the participation of NGOs in monitoring and
evaluating EFA goals
Reinforcing NGO technical and institutional capacities,
particularly at the local level.
The Convention against Discrimination in Education has been
recognized by UNESCO as a key pillar of EFA.
UNESCO Guidelines on Intercultural Education

for EFA
Intercultural Education is a response to the challenge to
provide quality education for all. It is framed within a Human
Rights perspective as expressed in the Universal Declaration
of Human Rights (1948): Education shall be directed to the
full development of human personality and to the strengthening
of respect for human rights and fundamental freedoms. It
shall promote understanding, tolerance and friendship among
all nations, racial and religious groups, and shall further the
activities of the United Nations for the maintenance of peace.
The challenge for Intercultural Education is to establish and
maintain the balance between conformity with its general
guiding principles and the requirements of specific cultural
contexts. For this purpose, The Rabat Commitment, formed as
a result of the Rabat Conference on Dialogue among Cultures
and Civilizations through Concrete and Sustained Initiatives
(Rabat, Morocco, 1416 June 2005), recommends the
preparation of guidelines on Intercultural Education, building
on the research, publications and practice already carried out.
The UNESCO Guidelines on Intercultural Education (2006)
contain the following principles:
Principle I: Intercultural Education respects the cultural
identity of the learner through the provision of culturally
appropriate and responsive quality education for all.
Principle II: Intercultural Education provides every learner
with the cultural knowledge, attitudes and skills necessary to
achieve active and full participation in society.
Principle III: Intercultural Education provides all learners with
cultural knowledge, attitudes and skills that enable them to
contribute to respect, understanding and solidarity among
individuals, ethnic, social, cultural and religious groups and
nations.
For more information on the Guidelines see the UNESCO website
http://unesdoc.unesco.org/images/0014/001478/147878e.pdf
4. Human rights education

46] Human rights education is defined as any learning,
education, training and information efforts aimed at building
a universal culture of human rights.36 Human rights education
is an integral part of the right to education. It embraces
all education levels and all forms of teaching and learning.
For this reason, in developing human rights education, the
state is compelled to adopt the same scheme of human rights
obligations for the right to education. Human rights education
responds to the dialectic between the full development of
the human personality and the strengthening of respect for
human rights and fundamental freedoms for the promotion of
understanding, tolerance and friendship among nations and
for the maintenance of peace.37
36. Plan of action for the second phase (2010-2014) of the World Programme for Human
Rights Education (A/HRC/15/28), as adopted by Human Rights Council resolution 15/11,
para. 1.
35. Para. 8 of the Dakar Framework for Action.
54
37. Article 26 para. 2 of the UDHR.
Chapter IV
47] Indeed, following the World Conference on Human Rights

held in Vienna in 1993 and based on the achievements of the
United Nations Decade for Human Rights Education (1995
2004) the General Assembly of the United Nations proclaimed
on 10 December 2004, the World Programme for Human
Rights Education (WPHRE) (2005ongoing).38 The goal
of this Programme is to promote a common understanding
of the basic principles and methodologies of human rights
education, to provide a support for policy-oriented action,
and to strengthen partnerships and international cooperation.
This programme aims to advance the implementation of
human rights education programmes in all sectors.
48] During the first phase (20052009) of the WPHRE,
governments, in adopting the plan of action for the first
phase39, committed themselves to focus on primary and
secondary levels of education, to analyse the current
situation of human rights education in primary and secondary
school systems; to set priorities and develop a national
implementation strategy; to implement and monitor
planned activities, and to evaluate the outcomes of national
implementation.
49] At the international level, the United Nations InterAgency Coordinating Committee on Human Rights Education
in School System (UNIACC),40 was mandated to ensure United
Nations system-wide support to national implementation
of the plan of action. Within this framework, UNESCO was
actively involved in the follow-up to the first phase and
developed the practical tools for teaching and learning as
well as for policy planning related to human rights education
in general, and with focus on the specific questions such as
learning to live together, prevention of violence in schools,
gender, etc. Partnership with NGOs is considered critical in
developing contents and methodologies relevant to learners
everyday life as well as in outreach.
50] At the conclusion of the first phase, a global evaluation
of national implementation of human rights education in
the school system was undertaken and the related UNIACC
evaluation report, submitted to the General Assembly, revealed
that there was particularly notable progress in making human
rights education part of national curricula. There are also a
number of national initiatives in terms of policy and action
to foster a culture of respect for human rights in daily school
life. Certain gaps in implementation remain, which suggests
the need for a more comprehensive and systematic approach
at the national level.41
38. For more information about these two initiatives, please see www2.ohchr.org/english/
issues/education/training/index.htm.
39. Plan of action for the first phase of the World Programme for Human Rights Education
(A/59/525/Rev.1). as adopted by the United Nations General Assembly resolution
59/113 B.
40. The United Nations Inter-Agency Coordinating Committee on Human Rights Education in
School System was established for the duration of first phase and was composed of the
following agencies: ILO, OHCHR, UNAIDS, UNDG, UNDP, UNDPI, UNESCO, UNFPA, UNHCR,
UNICEF, UNRWA and the World Bank.
41. Final evaluation of the implementation of the first phase of the World Programme for
Human Rights Education (A/65/322).
51] The Human Rights Council decided, in its resolution 12/4

(October 2009), that the second phase of the WPHRE focus on
human rights education for higher education and on human
rights training programmes for teachers and educators, civil
servants, law enforcement officials and military personnel at
all levels for five years, 2010-2014 (paras. 2 and 4). The
resolution also Encourages States that have not yet taken
steps to incorporate human rights education in the primary
and secondary school system to do so, in accordance with
the Plan of Action of the first phase of the World Programme
(para.3).
52] The Council requested the Office of the UN High
Commissioner for Human Rights to prepare, within existing
resources, in cooperation with relevant intergovernmental
organizations, UNESCO and non-governmental actors, consult
States on and submit for consideration to the 15th session
of the Human Rights Council (September 2010), a plan of
action for the second phase of the World Programme (20102014), () (para.4). This new plan of action was developed
by OHCHR in consultation with UNESCO and many other
stakeholders, and was adopted, as contained in A/HRC/15/28,
by the Human Rights Council resolution 15/11 (30 September
2010).
53] As the lead agency on education, UNESCO has set forth
milestone instruments that have guided its work, as well as
other international agencies, on human rights education.
These include: the Recommendation concerning Education
for International Understanding, Co-operation and Peace
and Education relating to Human Rights and Fundamental
Freedoms (1974). This Recommendation, which was adopted
by UNESCOs General Conference in 1974, provides normative
framework for promoting human rights education by detailing
guiding principles and formulating a global approach. It
provides for action in various sectors of education and
underlines the need for understanding and respect for all
peoples, their cultures, civilizations, values and ways of life
as well as the responsibility of Member States for providing
human rights and fundamental freedoms.
54] Indeed, UNESCO Member States are invited on a regular
basis to submit national periodic report on the measures
taken to implement this Recommendation.42 The objective
of monitoring the implementation of this Recommendation
is to monitor the process whereby human rights materials
and principles have been progressively incorporated into the
legal, administrative, educational and teaching tools that
guide the daily practice of education. Member States are
invited to consult relevant stakeholders and in particular the
national human rights institution.
42. In accordance with 34 C/Resolution 87, document 182 EX/35 Results of the Fourth
Consultation on the Implementation of the 1974 Recommendation concerning Education
for International Understanding, Co-operation and Peace and Education Relating to
Human Rights and Fundamental Freedoms was submitted to the 182ndsession of the
Executive Board (September 2009) and to the 35th session of the General Conference
(October 2009).
55
Chapter IV
55] At the UN level, Member States are invited to provide

information on any measures taken to ensure adequate education
and training in human rights for a wide range of professional
categories, including teachers, based on the framework of the
Harmonized Guidelines for reporting under international human
rights treaties, adopted by the 18thMeeting of Chairpersons of
the Human Rights Treaty Bodies in June 2006. States should
submit information on any measures taken to promote respect
for human rights through education and training in general,
and within schools in particular. 43NGOs are invited to support
Member States in this task.
56] In following up Human Rights Council Resolution A/
HRC/6/10 adopted in September 2007, a drafting group
was set up within the framework of Human Rights Councils
Advisory Committee for elaborating the proposed UN
Declaration on Human Rights Education and Training. One
of its main tasks was to collect information on normative
instruments and key initiatives that relate to HRE, most of
which came out of the recent UN Decade for Human Right
Education (1995-2004). The Committee also took into account
other existing initiatives such as the UN World Programme for
Human Rights Education (WPHRE, 2005-ongoing). In order to
enhance the long-term awareness of human rights education,
UNESCO actively contributed to the drafting process of this
UN declaration. National Commissions for UNESCO as well
as UNESCO Chairs and partner NGOs were invited to share
their experiences and lessons learned on several occasions.
The draft declaration was finalized by the Open-ended
Intergovernmental Working Group on the draft United Nations
declaration on human rights education and training (10-14
January 2011) and subsequently adopted by the Human
Rights Council in its resolution 16/1 (23 March 2011).
57] Concretely, NGOs are invited to participate by sending
pertinent information on the inclusion of human rights
education and training in their activities.44

58]
Focus on education as a human right and not as a service.
Preserve public interest in education
The right to education is justiciable as an independent
right. It does not need to be linked to another human
right.
Prioritize the principle of the best interests of the child
in public policies and legal frameworks
Universal right to education is also related to the
universality of rights: education is closely linked to all
rights including food, housing, the right to have a family,
work etc.
Policies and plans as well as financial, macro and microeconomic strategies should be analysed in order to define
the potential impact they will have on children.
Children lack a political voice they depend on adults
to present their claims but are a priority of the legal
system. The Convention on the Rights of the Child
stresses that all children should have guaranteed access
to education regardless of their legal status or that of
their parents. For this reason, publicly-funded childrens
advocates, NGOs, special counsels, public defenders or
ombudsmen are required to represent their claims.
Ensuring equal educational opportunities for all in law
and in fact. It is important to place greater emphasis
on action at national level for universalizing access
to quality education for all without discrimination or
exclusion. Positive measures and affirmative action could
be necessary for mitigating inequalities in educational
opportunities. Equity, quality and financing are key areas
in pushing forward the EFA agenda.
Financing of education: developing a legal framework
Measuring impact of awareness raising
43. Harmonized guidelines on reporting under the international human rights treaties,
including guidelines on a common core document and treaty-specific targeted
documents, UN document HRI/GEN/2/Rev.6 (2009) available at: www2.ohchr.org/
english/bodies/coredocs.htm.
44. See, for example, Human rights education in the school systems of Europe, Central Asia
and North America: a compendium of good practices, OSCE, CoE, OSCE/ODIHR, UNESCO
and OHCHR, 2009.
Exercises
1) Identify obligations (respect, protect, fulfil) and violations (fees, compulsory nature, teachers training; groups:
women and girls, minorities, emergencies, extremely poor) related to the right to education.
2) Identify what role for States representatives, NGOs and judges on advancing the implementation of the right to
education.
3) Provide elements for a human rights-based approach to budgetary analysis applied to education.
56
FOOD
The right to adequate food

57
1. Definition(s) of the right to (adequate) food
59
2. State obligations under the right to food
60
3. Core obligations under the right to food
61
4. Duties of equal protection and nondiscrimination
62
5. Voluntary Guidelines to support the progressive
realization of the right to adequate food in the
context of national food security
63
6. Developing legislative frameworks recognizing
and implementing the right to food as a justiciable
right
64
Chapter IV
Asianet-Pakistan
The right to
adequate food
It is barely credible that millions of people around the world are still suffering and dying from
malnutrition, hunger and starvation. This situation will not be alleviated unless the roots of
hunger and poverty are addressed. Key priorities for any poverty alleviation strategy should
include strengthening the effective implementation of policies and the development of a clear
definition of the right to food, as an autonomous right. This chapter presents the challenges
facing the operational aspects of the right to food and the arguments for this human right to be
implemented as a justiciable right. It underlines the necessity of developing human rights-based
legislative frameworks for recognizing the right to food as a right of all people. It also presents
examples of NGO activities in the field that have played a crucial role in providing first-hand
solutions for those most vulnerable to hunger and poverty, in particular, women and children.

adequate food1
the content of other rights.4 Today, however, numerous cases

show how the right to food is being increasingly recognized
at the national level as a justiciable right.5
1] Although the right to food was the first human right studied
within the framework of the UN System, it has advanced
and been explored only relatively recently in comparison
with other economic, social and cultural (ESC) rights. The
content of this right has been developed at the national
level over the last two decades, but above all in terms of
its relationship to other human rights, such as the right to
life,2 work and income3 (especially in relation to the element
of procurement), education, housing or health. The right to
food thus constitutes an example of the interrelatedness and
interdependency of human rights: it is defined through other
human rights at the same time as it provides elements for
2] As mentioned in the chapter on the right to adequate

housing, Article 25 of the Universal Declaration of Human
Rights (UDHR) mentions the right to adequate food as part of
the right to a standard of living.6 As with the right to adequate
housing, adequate food is indispensable for the fulfillment
of other human rights. In its article 11, the International
Covenant on Economic, Social and Cultural Rights (ICESCR)
enshrines the right to adequate food and provides the main
direction on states obligations at national level.7 The Special
Rapporteur on the right to food, in his first annual report to
the Human Rights Council,8 emphasized that this human right
needs to focus on the beneficiaries, and that the needs of the
1. In this paper we refer to the right to food and the right to adequate food indistinctly, in
accordance with the interpretation provided by the Committee on Economic Social and
Cultural Rights in General Comment n12. According to this definition, the right to food
includes the adequacy and sustainability of food availability and access.
2. Examples of the interrelation of the right to food and the right to life include India
Maneka Gandhi v. Union of India AIR 1978 SC 597, where the Supreme Court stated:
Right to life enshrined in Article 21 means something more than animal instinct and
includes the right to live with human dignity, it would include all these aspects which
would make life meaningful, complete and living. Similarly, in Shantistar Builders v.
Narayan Khimalal Totame (1990) 1 SCC 520, the Supreme Court stated: The right to
life is guaranteed in any civilized society. That would take within its sweep the right
to food. In Chameli Singh v. State of U.P, AIR 1978 SC 597 states that the right to
life is guaranteed in any civilized society implying the right to food, water, decent
environment, education, medical care and shelter among others.
3. Since employment is linked to purchasing power and therefore to food security, the right
to work is crucial for realizing the right to food.
4. See, for example, Argentina, Corte Suprema de Justicia de la Nacin, Defensor del Pueblo
de la Nacin c. Estado Nacional y otra, 2007, where the Supreme Court protected the
access to food and water of indigenous communities who died due to a lack of access
to food and water. See also the case Sawhoyamaxa v. Paraguay, 2006, of the InterAmerican Court of Human Rights, in which the Court protected the right to food of the
Sawhoyamaxa indigenous community by protecting their right of life.
5. See, for example, Right to Food and Access to Justice: examples at national, regional and
international levels, FAO, 2009.
6. See Chapter related to the Right to adequate housing, footnote 1.
7. Article 11 of the ICESCR states: The States Parties to the present Covenant recognize the
right of everyone to an adequate standard of living for himself and his family, including
adequate food, clothing and housing, and to the continuous improvement of living
conditions. The States Parties will take appropriate steps to ensure the realization of this
right, recognizing to this effect the essential importance of international cooperation
based on free consent. Many other international instruments mention the right to food
including the Convention on the Rights of the Child (Article 24).
8. Olivier De Schutter took office on 1 May 2008, report A/64/170.
57
Chapter IV
most marginalized groups should be prioritized, including in

particular smallholders in developing countries.
3] The Committee on Economic, Social and Cultural Rights
(CESCR) clarified the content of the right in General Comment
n12,9 affirming that adequate food is realized when every
man, woman and child, alone or in community with others,
have physical and economic access at all times to adequate
food or means for its procurement.10 The CESCR established
that this definition should not be understood in a restrictive
manner which refers only to a minimum package of calories,
proteins and other specific nutrients. The right to food should
be understood as a broader concept requiring a progressive
implementation. Nonetheless, the core definition of this human
right relies on two main elements: availability and accessibility
to food. The accessibility can be attained either by economic
means (income) or by direct access to food (direct food
provision). In that sense, the Committee has stressed that the
problem of malnutrition and the availability of food is linked to
accessibility of food, underlining the connection with poverty.11
4] The progressive realization of the right to food encompasses
immediate and long term measures. It imposes an obligation
on States to take the steps necessary to mitigate or alleviate
hunger and starvation in all situations, by adopting measures
to enable the poorest to have access to balanced and
nutritious food ensuring the fulfillment of the core aspects
of this human right.12 In the long term, the Voluntary
Guidelines to Support the Progressive Realization of
the Right to Adequate Food in the Context of National
Food Security (Right to Food Guidelines) adopted by all
FAO member states, address in a comprehensive and holistic
way the measures that should be taken to build an enabling
environment where people can feed themselves, a system
of assistance to those who are unable to feed themselves,
and measures to enhance accountability of all state actors.13
In concrete terms, Voluntary Guideline n7, for example,
focuses on the existence of independent and protective legal
mechanisms to allow vulnerable groups access to effective
remedies when their right to adequate food is violated. This
recommendation goes further since it requires dissemination
of information regarding the entitlements of vulnerable
groups to this right. Furthermore, the Right to Food Guidelines
encourage states to ensure the progressive realization of the
right to food through a growth strategy which is consistent
with human rights objectives and obligations and should
focus on the most vulnerable (impact assessments-safety
9. UN Document E/C12/1999/5.
10. See G.C. n12 para. 6.
11. G.C. n12 para. 5.
12. See, for example, M. Borghi and L. Postiglione Blommestein (eds) 2005, The right to
adequate food and access to justice, Fribourg, Switzerland, Editions Universitaires.
13. Adopted during the 127th session of the FAO Council in November 2004. Section 5 of this
chapter develops the content of the Voluntary Guidelines. Concerning the progressive
realization of this right, Voluntary Guidelines n5 related to Institutions (7) on legal
frameworks and (17) on monitoring, indicators and benchmarks are especially pertinent
for ensuring its progressive implementation. More information on the Voluntary
Guidelines will be given in the section related to implementation of the Right to
Food.
58
net programmes, etc). In the development of policies aiming

to enhance livelihoods protection, the implementation of a
food security system which facilitates sustainable strategies
to an adequate access to food is fundamental and no budget
restrictions should undermine this human right.14
Zero Hunger Programmes: the experiences of Brazil and

Nicaragua
The Brazilian authorities created a Food and Nutritional
Policy with a national food security programme entitled the
Zero Hunger Programme. A National Council for Food and
Nutritional Security (CONSEA) enables NGOs and government
authorities to share experiences and put in place strategies for
the implementation of food strategies.
The Programme includes the following multidimensional
components: (1) A design of a new economic model based
on income improvement (including income and employment;
generation policies level; previdenciary expansion and agrarian
reform); (2) A better income distribution, based in the
increase of Basic Food Supply (including support to familiar
agriculture; incentives to self-consumption; food production and
agricultural policy); (3) A Domestic Market Growth, based on
Emergency Actions (including food coupons; basic food basket;
childrens free-food-in-school; special programs; food bank and
food security stocks; and finally; (4) More employment and
better Salaries, based on Food Cheapening (including popular
restaurants; agreements between supermarkets and in-natura
food Markets; alternative trade channels and public equipment.
See more information of the project in:
www.brasembottawa.org/downloads/en/PROGRAMA.PDF
In line with the Brazilian Zero Hunger programme, Nicaragua,
one of the poorest countries in Latin-America launched the
same initiative for 2008-2012, focusing on mother-and-child
health, food for education and food for training for 225,000
beneficiaries. The current programme covers 70 percent of the
needs identified by vulnerability analysis and mapping.
See for more information: 2009 report of FIAN International,
El Derecho a la Alimentacin y la lucha para combatir el hambre
en Nicaragua: Un Ao del Programa Hambre Cero available at:
www.bvsde.paho.org/texcom/nutricion/alimen_nic.pdf
and also
Plan of Action between the government of Nicaragua and UNDP
2008-2012 available at: www.undp.org/latinamerica/countrydocs/CPAP%20Nicaragua-2008-2012.pdf
5] Progressive protection is a complex challenge that

addresses food priorities and the management of food
production and distribution through food systems. This can
only be achieved through the implementation of a broad
strategy involving diverse actors and activities, including:
plans for procurement and buffer stock, diversification of
crops, the role of the private sector, decentralization policies,
plans for farmers, incentives, subsidies, implementation of
nutrition and employment programmes.
14. See for more information: FAO, The right to Food: Putting it into practice, Brief 2,
Economic Development Policy available in: www.fao.org/righttofood/download_2008/
briefs_EN.pdf
Chapter IV
6] The right holders are numerous. It involves urban and

rural populations, from which producers and providers, such
as farmers, workers and plant breeders. The accessibility and
availability of food depends on the means of procurement
created by markets, food schemes, state strategies for
distribution and the role of private actors. Regulation and
monitoring are therefore crucial for its respect and expansion.
2. States obligations under the

right to food
7] The tripartite typology explained in Chapter III related
to the generic obligations to respect, protect and fulfil has
been expanded in General Comment n12, which establishes
two dimensions within the obligation to fulfil, namely, the
obligation to facilitate and to provide.15
8] The obligation to respect relates to the duty to respect
the existing access to adequate food. This obligation
requires that States do not take any measures that impede
such access.16 Voluntary Guideline 8.1 clarifies that states
should protect the assets that are important for the peoples
livelihoods. The case Kishen Pattnayak & another v. State
of Orissa,17 the first Indian case related to right to food,
expresses the importance of access to food in alleviating
poverty. The case, brought before the Supreme Court of India,
dealt with the situation of extreme poverty of the people
of Kalahandi in Orissa, where hundreds were dying due to
starvation, and where children in particular were vulnerable.
The Indian Supreme Court gave directions to the government
regarding measures to be taken for preventing deaths due to
poverty and starvation, but no specific measures were issued
to end the situation itself.
9] Furthermore, in the case Taito Rarasea v. State,18 in
Fiji, the lack of food for a prisoner serving a long sentence
was considered as cruel, inhuman and degrading treatment.
The High Court of Fiji invoked both the ICESCR and the
International Covenant on Civil and Political Rights (ICCPR),
and found that reducing the portion of food stated in the
Prison Act, and using food as a mean of control, constituted a
violation of the right to adequate food. This case constitutes
an important basis for the indivisibility of civil and political
and economic, social and cultural rights.
15. Supra note 21, GC 12 para. 15.
10] In the Kenneth George case,19 artisanal fishing

communities presented a class action to the High Court of
Cape of Good Hope Province in South Africa, and asked for the
protection of their fishing rights as well as the protection of
their right to food. They alleged a violation of the obligation
to respect the right to food caused by a retrogressive
measure of blocking access to the sea for traditional fishing
communities, which would cause poverty among artisanal
fishing communities who depend on traditional fishing
practices. In addition, they accused the existing fishing policy
of exclusivity, obliging them to integrate a commercial fishing
industry in their practices or face exclusion from legal fishing
operations. In its decision, the High Court ordered the drafting
of a new law with the participation of the community and in
accordance with international and national legal obligations.
11] The obligation to protect the right to food imposes
a duty to regulate activities related to access to food,
ensuring that third parties (private actors or individuals) do
not impede accessibility. In the case Social and Economic
Rights Action Center & the Center for Economic and
Social Rights v. Nigeria20 for example, the action of state
authorities destroying and threatening food sources of
the Ogoni people in Nigeria constituted a violation of the
duty to protect. Indeed, the complaint was lodged by two
non-governmental organisations: the Social and Economic
Rights Action Centre (SERAC) and the Centre for Economic
and Social Rights (CESR). The communication dealt with a
number of human rights violations provoked by the alleged
action of the military government of Nigeria in one hand,
and by the Nigerian National Petroleum Company (NNPC),
in a joint venture with Shell Petroleum Development
Corporation (SPDC) in another hand. Activities in the Ogoni
region caused important environmental degradation, as well
as the destruction of homes, burning of crops, killing of
animals and health problems among the Ogoni people. The
latter, resulted from the contamination of the environment,
and in particular, a contamination of soil, water and air, the
destruction of homes, the burning of crops and killing of farm
animals. The protect obligation was violated because of the
states omission to undertake any action to stop the private
party from destroying the food sources of the Ogoni. This
violation occurred by the use of a variety of means including
the participation of state authorities in an irresponsible oil
development that poisoned part of the soil and water upon
which Ogoni farming and fishing depended. This situation
caused destruction of farmlands and crops, poisoning of
rivers and animals, and created malnutrition and starvation
among Ogoni communities.
12] The obligation to facilitate implies any initiative aimed
at strengthening access to and utilization of resources and
16. See G.C. n12, para. 19.

17. A.I.R. 1989 S.C. 677.
18. Criminal Appeal nHAA0027 of 2000, 12 May 2000. See also the cases of the Human
Rights Committee related to the right to food of prisoners: Mukong v. Cameroon,
Communication 458/1991, 1994 and Lantsova c. Fdration de Russie, Communication
n763/1997, 2002.
19. Kenneth Georges and Others vs. Minister of Environmental Affairs and Tourism, 05 02
2007.
20. African Commission on Human and Peoples Rights, October 27, 2001 Communication
n155/96.
59
means to ensure livelihoods, including food security. It

includes also all the variety of measures that the authorities
should develop in different areas of action (legal, policy,
institutions, programmes, strategies, etc. The duty to provide
rather concerns the obligation of states to ensure that people
with special limitations can enjoy the right to adequate food,
it is thus applicable in all circumstances in which people are
unable to feed themselves by their own means. The CESCR has
added that this obligation has special significance in the case
of situations of natural disasters. 21
3. Core obligations under the

right to food
13] A core obligation under the right to food is to immediate
ensure freedom from hunger, meaning in practical terms to
provide minimum basic resources to enable individuals to
be free from threats to their survival. The aim of freedom
from hunger relates to two core elements: adequacy (which
includes both quantitative and qualitative dimensions), and
accessibility. Adequacy and accessibility are therefore
in terms of the CESCR core elements of the right to food.
Furthermore, the CESCR mentions two other principles upon
which depends the long-term maintenance of adequacy and
accessibility: the availability and sustainability of food.
14] In relation to immediate targets, adequacy means
that food (including solid foods but also the nutritional
aspects of drinking water) or diet should be appropriate.22
This element has been particularly important in national
jurisdictions in relation to special protection for vulnerable
people. In the landmark Indian case Peoples Union for Civil
Liberties (PUCL) v. Union of India and Others,23 initiated
by the domestic NGO Human Rights Law Network (HRLN)
and popularly known as the PUCL case or the Right to
Food case, the Supreme Court of India elaborated on the
concept of adequacy in relation to the right to life.24 The
Court explored the meaning of the portion of the diet and
monitored the supplied nutrition elements for pregnant
women, children, girls and adolescents. The Court affirmed
that food [should be] provided to the aged, infirm, disabled,
destitute women and men who are in danger of starvation,
pregnant and lactating women, destitute children, especially
in cases where they or members of their family do not have
21. See G.C. para. 15.
22. The diet should also contain the necessary mix of micronutrients for physical and
psychological growth according to gender and occupation. It should be free of
unfavorable or toxic substances, meaning that it should be safe (as regards contamination
of foodstuffs, adulteration or environmental conditions) and should respond to cultural
or consumer acceptability: it should fit into a dietary culture and provide accessibility of
food supplies. See G.C n12 para. 14.
23. 2004(2) SCC 476. Writ Petition (Civil) 196 presented in 2001 through a PIL and based on
Article 21 of the Indian Constitution. The petition focuses on the general need to uphold
the right to food, especially the distribution of food to areas where starvation deaths
were occurring in India.
24. Some mentions also relate to the right to work.
60
Chapter IV
sufficient funds to provide food for them. The Court ordered

the immediate use without delay of food stocks in order to
prevent hunger and starvation. After, the Court asked the
states to identify families below the poverty line (BPL) in
order to identify targeted food schemes. Based on PUCL,
the Indian Supreme Court passed more than twenty interim
orders25 ordering the government to: (1) introduce cooked
midday meals in all primary schools, (2) provide 35 kgs of
grain per month at highly subsidized prices to 15 million
destitute households under the Antyodaya component of
the PDS, (3) double resource allocations for Indias largest
rural employment programme (Sampoorna Grameen Rozgar
Yojana programme), and (4) universalize the Integrated Child
Development Services. The Court was also able to identify
the minimum quantity of nutrition and food to be made
available. For a malnourished child the diet should comprise
600 calories and 1620 grams of protein; a child up to 6 years
old should have 300 calories including 810 grams protein;
and for an adolescent girl, 500 calories and 2025 grams of
protein.
Right to Food Campaign

The PUCL case, which had at first an impact in Rajasthan,
gained a broader scope, and today encompasses almost all
national Indian food schemes. As a consequence, a genuine and
effective Right to Food Campaign was implemented with the
support of NGOs. They disseminated the following entitlements
derived from the PUCL case: the National Rural Employment
Guarantee Act (NREGA), the Integrated Child Development
Services (ICDS), Mid-day Meals (MDM) scheme, and the Public
Distribution System (PDS).
As a consequence, a genuine and effective Right to Food
Campaign was implemented with the support of NGOs, which
disseminated a number of entitlements derived from the
PUCL case. Additionally, the Department of Food and Public
Distribution, Ministry of Consumer Affairs, Food & Public
Distribution, have prepared a draft National Food Security
Bill that is actually under discussion. This case is crucial
for understanding how an assistance programme became a
national strategy, supported by legal protection of the right to
adequate food for the poor. It underlines how NGOs can actively
participate in this recognition (for more information, see www.
righttofoodindia.org).
15] Accessibility of food is a requirement composed of

two elements: physical accessibility, which gives access
to all people and especially vulnerable people who cannot
supply food for themselves. In this regard, the G.C. mentions
expressly the victims of natural disasters, ill and terminally ill
people, indigenous people and children. The second element
is economic accessibility, which is related to income which
is the basis for food purchase.
25. Interim orders are tools for prompt action in order to stop a violation and to hold
governments accountable. They are applicable during the duration of the case and can
be incorporated in the final judgment.
Chapter IV
16] Certain cases have provided clarification in relation to

physical accessibility. The Argentinean Court ordered that
an ill and highly vulnerable person suffering from cancer be
included within a food plan.26 However, in the case C.M.D.
y otros c. GCBA27 dealing with the arbitrary exclusion
of a woman and her children from a food programme, the
Argentinean Court ruled against the petitioner and did not
accept her inscription in an alternative food programme,
instead ordering that the petitioner and her children be
provided with adequate food as a temporary solution against
malnutrition. A similar decision was given in India in the
above mentioned case Peoples Union for Civil Liberties
(PUCL) v. Union of India, in which the Court ordered an
increase in the number of centres supplying food to children
(Agawandi Centers (AWCS)) within three months following
the decision.28
17] In ruling T-602 of 200329 related to the right to food
for displaced children, the Colombian Constitutional Court
ordered the protection of a displaced and old woman, mother
of two children. The Court had studied the entire system
for protecting displaced populations and cited programmes,
projects, rural plans, subsidies and food security initiatives
to protect victims of situations of displacement. The Court
insisted upon economic accessibility, stressing that financial
supports are essential to help people escape from poverty,
and decided that the public policy for displacement was not
appropriate. The Court decided that the right to food was part
of the right of an adequate standard of living and ordered the
implementation of an integral food programme for displaced
children.30 The importance of this decision lies in the fact that
the Court ordered the authorities to include the petitioners
within a productive, integral and viable food security plan
within the following six months of the decision and to cover
its expenses.
18] As noted above, two concepts of long-term maintenance
relate to the immediate duties of states: the availability
of food, which relates to the possibility of feeding oneself
directly from natural resources and productive land, as well
as the production, distribution and market systems which
place the food where it is needed, and sustainability, which
relates to the long-term availability and existence of food
between generations and to food security. Guaranteeing the
sustainability of the food produced and consumed requires the
full utilization of a wide and complex array of knowledge in
the fields of technology, agriculture, environmental sciences,

health, food safety and social sciences among others.
4. Duties of equal protection

and non-discrimination
19] The implementation of inclusive food strategies requires
the integration of the PANTHER principles, in particular
the principle and right of non-discrimination and equal
protection.31 Even in situations where food is made available,
discriminatory policies, plans and distribution systems can
completely undermine the right to food. Indeed, equal
access to food should also be guaranteed through access to
land, property, credit and technology. Discrimination can be
disguised in a variety of ways, for example: discrimination
by law in which the poor or vulnerable people and their
rights to food are not recognized by the legal framework;
discrimination as a cause and consequence of ancient
cultural patterns which sometimes exclude women or groups
of the population from access to a certain right; forms of
discrimination including exclusion by bad administration, the
holding of stock surplus, or the exclusion of sections of the
population through marketing strategies.
20] In addition, a gender approach to food is crucial.
Inadequate food for women, especially pregnant women,
as well as their exclusion from production processes is a
violation of their right. Voluntary Guideline 8.6 explicitly
mentions the principle of equal access by women to
productive resources, stating that: States should promote
womens full and equal participation in the economy and, for
this purpose, introduce, where it does not exist, and implement
gender sensitive legislation providing women with the right to
inherit and possess land and other property. States should also
provide women with secure and equal access to, control over,
and benefits from productive resources, including credit, land,
water and appropriate technologies.32
26. Buenos Aires Administrative Court n4, Gonzalez Rayco, Artidoro c. GCBA s. amparo,
05/19/2005 s. de amparo, Juzgado Contencioso Administrativo y Tributario n3 Buenos
Aires 11/03/03.
27. S/ de amparo, Juzgado Contencioso Administrativo y Tributario n3 Buenos Aires
11/03/03.The petitioner was excluded from the food programme Vale Ciudad. Due to
this arbitrary exclusion, her children suffered notable weight loss and were treated in a
hospital for malnutrition. The Court ordered that she be provided with packages of food,
but stated that she could not legitimately be inscribed in a food programme.
28. See op.cit. par. 14.
29. Colombian Constitutional Court Ruling T-602 of 2003, Ana Zrate de Bernal c. Red de
Solidaridad Social y INURBE.
30. See also the joint survey undertaken by the World Food Programme (WFP) and ICRC,
Identifying Food and non food needs of the internally displaced in Colombia, 27 December
2004 available at: www.reliefweb.int/library/documents/2004/wfp-col-27dec.pdf
31. PANTHER (principles) is an aide-mmoire formulated by FAO, which stands for the human
rights principles of Participation, Accountability, Nondiscrimination, Transparency,
Human dignity, Empowerment and Rule of law. A deliberate application of these
principles allows development planners to design integrated, holistic and targeted
strategies of empowerment, equality and inclusion, to redress human rights violation
and advance accountability processes.
32. Supra notes 13 and 14,Voluntary Guideline 8.6. This gendered approach to food security
has been incorporated for example in Article 15 of the recent Protocol to the African
Charter on Human and Peoples rights on the Rights of Women in Africa, which states
that in the framework of the right to food security, states should: (a) provide women
with access to clean drinking water, sources of domestic fuel, land, and the means of
producing nutritious food; and (b) establish adequate systems of supply and storage to
ensure food security.
61
5. Voluntary Guidelines to
support the progressive
realization of the right to
adequate food in the context
of national food security
Right to Food Guidelines
21] The Voluntary Guidelines to support the progressive
realization of the right to adequate food in the context
of national food security (Right to Food Guidelines)33 are
one of the first intergovernmental documents dealing with the
operationalization of an ESC right. Although the Right to Food
Guidelines are adopted by states and are not compulsory, they
have an authoritative character and can be effective tools
for a large range of practitioners. They focus on the effective
implementation of ESC rights as human rights in equal
standing with civil and political rights. They evoke the access
to productive resources as well as assistance for those who are
not able to access or provide from themselves. These guidelines
also constitute a resource for legislative authorities and public
policies since they translate a right into recommendations and
make request the development of institutional and legislative
frameworks. They also constitute a valuable advocacy and
monitoring tool for use by civil society.
22] The Right to Food Guidelines contain nineteen
provisions34 which incorporate much of the content of General
Comment n12. However, they include additional provisions
that should be taken into account by Members States, NGOs
and other actors responsible for the advancement of the
right to food at the national level. Despite their non-binding
nature, the Right to Food Guidelines mention some state
obligations contained in the ICESCR which are binding.35
23] Supported by the principle of interdependency of human
rights, the Right to Food Guidelines propose five steps for
implementing the right to food.
(1) Advocacy and training. Advocacy empowers populations
to claim their rights as well as access to legal mechanisms:
it provides visibility and gives a voice to the poor. The
poor already exist within the legal system and can become
subjects of entitlements rather than victims. In addition,
capacity-building provided by NGOs, media and other
stakeholders make available tools and knowledge aimed at
33. Adopted during the 127 th session of the FAO Council in November 2004.
Chapter IV
empowering communities to help them understand what

the right to food means and constitutes. Trained state
authorities can improve awareness and understanding
of the necessity of providing legal empowerment of
marginalized and poor people in this process. The use of
accurate education materials combined with real-school
feeding programmes is helpful.
(2) Information and assessment. This relates to the
identification of right-holders including people living in
poverty, children, women (especially pregnant women),
older persons, minorities, people with disabilities among
many others. In relation to women and children, special
attention should be given to cultural practices which
place them in a position of less concern (eating last,
eating leftovers, or going without).
(3) Access to justice. Access to human rights claim
mechanisms combined with monitoring mechanisms is
crucial at the national and international level. Specific
legislation devoted to this goal and in accordance with
the Right to Food Guidelines will frame the practical
application of the Right to Adequate Food. Indeed, the
elaboration of comprehensive model or framework laws
in accordance with the Right to Food Guidelines, as
envisaged by UN General Comment n12, constitutes a
priority for clarification of what level of responsibilities
derive from this right.
(4) Effective action: strategy and coordination.
Comprehensive actions including a National Food
Strategy, as well as definition and selection of
benchmarks and mechanisms to ensure accountability,
comprise the basic legal framework for a compulsory
right to food strategy. But achieving food security
goes beyond this: it relates also to economic growth,
addressing inequalities, education, natural disasters,
agricultural production and distribution, extreme poverty
and lack of good governance among many other factors.
For this reason, coordination among state authorities
and civil society, including the private sector combined
with access to markets, rehabilitation of agriculture (offfarm opportunities including employment opportunities)
and good governance are core elements for an effective
and comprehensive strategy.
(5) Durable impact: applying rights-based monitoring
is a determinant factor for all policies related to the
realization of the right to food at the national level.
Institutional capacity, budgeting and human rights
based indicators are crucial, such as the ones developed
by OHCHR in collaboration with other actors and UN
Agencies as well as the right to food checklist recently
developed by FAO.36
34. The nineteen guidelines deal with the following thematic and policy areas: (1) Democracy,
good governance, human rights and the rule of law; (2) Economic development policies;
(3) Strategies; (4) Market systems; (5) Institutions; (6) Stakeholders; (7) Legal
frameworks; (8) Access to resources and assets, (8a) Labour, (8b) Land, (8c) Water,
(8d) Genetic resources for food and agriculture, (8e) Sustainability, (8f) Services; (9)
Food safety and consumer protection; (10) Nutrition; (11) Education and awareness
raising; (12) National financial resources; (13) Support for vulnerable groups; (14)
Safety nets; (15) International food aid; (16) Natural and human-made disasters; (17)
Monitoring, indicators and benchmarks; (18) National human rights institutions; and
(19) International dimension.
24] NGOs are well-placed to monitor the implementation

of the right to food at the local level. NGOs have provided
their own methodologies for assessing the impact of the
35. See for example the publication providing some guidance for indigenous peoples in www.
fao.org/righttofood/publi09/rtf_guidelines.pdf
36. See for example: www.fao.org/docrep/011/i0349e/i0349e00.htm; www.fao.org/docrep/011/

i0351e/i0351e00.htm; www.fao.org/righttofood/publi08/assessment_guide.pdf
62
Chapter IV
implementation of the right to food, as in the cases of India

and Brazil.
25] Budget monitoring by NGOs has been particularly
important in relation to this right. In India, for example,
budgeting mechanisms have been implemented following the
orders of the Supreme Court of India. Within the framework
of the Right to Food campaign, Commissioners involved
NGOs in the budget-planning processes to recalculate the
financial allocation and include additional provisions in the
case of children under the age of six months. Some of these
provisions include: advocating advancement of legislation
on the prevention of promotion of breast milk substitutes,
promotion of breast-feeding programmes, implementation of
facilities for women especially from rural areas among others.
26] In Brazil, NGOs have played a crucial role in assisting
the National Food and Nutrition Security Council (CONSEA) of
Brazil with the identification of policy priority areas. CONSEA
started by listing programmes with an activity related to
food security, for example, the Cash Transfers of the Bolsa de
Familia programme dedicated for poor households; once the
priorities were identified the related budget was established.37
6. Developing legislative
frameworks for recognizing
and implementing the right
to food as a justiciable right
27] National strategies to build upon the right to food are
necessary in order to increase public awareness and combat
hunger and starvation at the local level. A framework law is
consequently indispensable. For this reason, several initiatives
have been undertaken in order to build a framework law to
improve justiciability and advance the right to food security.
Examples of domestic laws on the right to food

The Indonesia Food Act n7 of 1996 was developed with the
support of the Development Law Service of the FAO. It contains
fourteen chapters including provisions related to food quality
and nutrition, food production and processing, institutional
responsibilities and community participation.
In Latin America, Guatemala was the first country to create
a domestic law on the right to food. The law entitled Ley
del Sistema Nacional de Seguridad Alimentaria y Nutricional
(SINASAN) was jointly drafted in 2005 with national
authorities, representatives of NGOs, and representatives of
International Organizations. In its Article 5, the law creates a
National Council for Food and Nutritional Security (CONASAN)
in charge of analysis and recommendations for policies and
strategies related to food security. Mozambique is willing to
present a project of law related to food in 2010.
In Brazil, Federal law n11346 from 15 September, 2006,
created the National System for Food and Nutrition Security
as well as the National Council on Food and Nutrition Security
(CONSEA), which monitors Brazilian policy on food and nutrition
security and is composed of thirty-six representatives of civil
society alongside representatives of state ministers.
In Quebec, the Act to Combat Poverty and Exclusion of 2002
included mention of assisting dignified access, for persons
living in poverty, to a food supply that is both sufficient
and nutritious, at reasonable costs, and simple and reliable
information enabling those persons to make enlightened
dietary choices.1 This national strategy aims to progressively
reduce poverty in Quebec, with the target of having the least
number of persons living in poverty among industrialized
nations by 2013.
A number of other initiatives are developing legal frameworks
for the right to food including the Regional Programme on
Food Security for Centro America (PRESANCA) an initiative
supported by the European Union, which aims to strengthen
capacities for food security.
1. See Act to Combat Poverty and Social Exclusion, Article 9 related to Strengthening
of social and economic safety net, 2002, c. 61, s. 9.
28] Before designing a framework law, it is necessary to

identify vulnerable groups and the location of food insecurity,
and then, to analyze the context and reasons for food
insecurity in order to understand the existing organizational
structure and its capacity to coordinate a future food
security policy in the economic context of the country. This
assessment is crucial for deciding whether to re-design the
existing legal food security legal framework or build a new
legal framework. Once this evaluation has been undertaken,
the design of a holistic legal framework should include the
following elements:38
37. See chapter 1 and the summary on the programme Bolsa Familia. The amount of
US$16.3 billion was allocated for the following seventeen priorities: (1) Food marketing
and storage; (2) Food access; (3) Structural interventions (employment, small-scale
production in poor communities, small businesses); (4) Smallholder agriculture;
(5) School feeding; (6) Healthy foods promotion, surveillance and healthcare; (7)
Biodiversity and traditional populations; (8) Collection and processing of recyclable
waste in rural and urban areas; (9) Public policies management (monitoring, mobilization
and education activities); (10) Water resources and infrastructure for food security; (11)
Fisheries and aquaculture; (12) Agrarian reform, credit and conservation; (13) Food
and nutrition security of afro-Brazilian populations; (14) Food and nutrition security of
indigenous populations; (15) Potable water and sanitation; (16) Income transfers; and
(17) Food and nutrition security in semi-arid regions.
focus on vulnerable groups

respect and incorporation of international human rights
obligations related to the right to food
38. See in particular: www.fao.org/righttofood/publi09/guide_on_legislating.pdf , pages 59
and 60.
63
creation of a National Strategy or Plan of Action on food

security
incorporation of monitoring mechanisms for progressive
realization of the right
strengthening of institutional cooperation and
participation, and
inclusion of recourse mechanisms.
Chapter IV
of the wide range of actors and activities linked to the

right to adequate food should be seen as an opportunity
for advancing its justiciability.
Increase sensitivity on the real situations regarding the
fulfilment of the right to adequate food at a short and
large-scale
Support judges in giving an impulse to the implementation
of the right to food despite the lack of its recognition as
an independent right in national frameworks.
Enhance the participation of civil society in the
monitoring of the right to adequate food.
29]
Develop the judicial protection of all components of the
right to adequate food
Approach the justiciability of the right to adequate food
and include the participation of all actors involved in its
procurement, regulation and monitoring. The complexity
Exercises
1) What is the difference between the fundamental right to be free from hunger and the right to adequate food?
2) How can the overall economic gains from trade benefit those who are most likely to be suffering from food insecurity?
3) Please kindly list the lasws and strategies related to the recognition and implementation of the right to food and food
security at the national level. Analyse the gaps and obstacles. Advance possible solutions.
64
65
1. Definition of the right to adequate housing
66
2. National Improvements on the definition of the right to
adequate housing
67
3. Minimum core obligations related to the right to adequate
housing
68
4. State obligations related to the right to housing
70
5. Forced evictions
74
6. Duties of equal protection and non-discrimination
75
7. The role of NGOs in advancing the right to housing
housing
The right to adequate housing
UNESCO/Roger Dominique
Chapter IV
The right to
adequate housing
Adequate housing is not only satisfied by providing shelter and security of tenure but goes beyond.
It entails the necessity of fulfilling psychological and social needs in order to allow each individual
to be part of a space in which he could enjoy privacy and at the same time be able to build a family
and a communal life. However, migration, conflicts and displacement, often result in a widespread
violation of the right to adequate housing. They create a situation in which informal settlements
such as slums and ghettos become the permanent resident of squatters. The homeless are therefore
targets of vast vulnerability and exclusion. This chapter aims at analyzing the core elements of the
right to adequate housing. It gives particular attention to the most vulnerable and marginalized
people of society as well as the necessity of mainstreaming gender into housing issues. The chapter
links the right to adequate housing to the right to safe drinking water and sanitation and the right
to education. It provides specific guidelines for advocacy and justiciability.
1. Definition
1] The right to adequate housing has a solid conceptual basis
provided by international and national legal frameworks. The
Universal Declaration of Human Rights (UDHR) notably
defines the right to housing as a part of the right to a
standard of living, and in relation to other rights such as
food, clothing, medical care and necessary social services.1
UN treaties have developed this definition and included
particular provisions in relation to the right to housing and
the prohibition of all forms of discrimination, and specific
considerations related to racial and ethnic minorities,
refugees, children, women, migrants and workers, persons
with disabilities and indigenous people among others.2
1. UDHR, Article 25.1 states that: Everyone has the right to a standard of living adequate
for the health and well-being of himself and his family, including food, clothing, housing
and medical care and necessary social services, and the right to security in the event of
unemployment, sickness, disability, widowhood, old age or other lack of livelihood in
circumstances beyond his control.
2. Among the UN Treaties we can find: Article 21 of the Convention relating to the status
of refugees (1951); Article 5(e)(iii) Convention on the Elimination of all forms of Racial
Discrimination (1965); Article 14.2(h) Convention on the Elimination of All Forms of
Discrimination against Women (1979); Article 16.1 and Article 27.3 of the Convention
on the Rights of The Child (1989); Article 43.1 of the International Convention on the
Protection of the Rights of all Migrant Workers and Members of their Families (1990);
Article 2, Article 5.3, Article 9.1(a), Article 19(a), Article 22.1, Article 28.1 and Article
28.2(d) of the Convention on The Rights of Persons with Disabilities (2008); Article 10,
Article 21.1, Article 23, Article 26, Article 27, Articles 28 and Article 32 of the Declaration
on the Rights of Indigenous Peoples (2007); Article 5(b) of the International Labour
Organisation (ILO) Convention 161 concerning Occupational Health Services (1985);
Article 2 and Article 5.2 of the International Labour Organisation (ILO) Convention
117 Concerning Basic Aims And Standards Of Social Policy (1962); Article 88.1 of the
International Labour Organisation (ILO) Convention 110 Concerning Conditions of
Employment of Plantation Workers (1958) and International Labour Organisation (ILO)
Recommendation 115 concerning Workers Housing (1961) among others.
2] Moreover a broad definition of the right to adequate

housing comprises additional provisions of the Global Strategy
of Shelter adopted by the General Assembly in 2000,3 which
states that adequate housing also includes adequate privacy,
space, security, lightning and ventilation, basic structure and
adequate location at a reasonable cost. The WHO Health
Principles of Housing as well as UN Habitat through its
Global Campaign for Secure Tenure has provided clarifications.
Additionally, NGOs such as the Centre on Housing Rights and
Evictions (COHRE), the International Union of Tenants (IUT),
Peoples Movement for Human Rights Learning (PDHRE),
Amnesty International and the Centre for Equality Rights
in Accommodation (CERA), among others, have developed
important materials related to this right.4
3] The most comprehensive provision on the right to adequate
housing is provided by Article 11.1 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR),
which states that: The States Parties to the present Covenant
recognize the right of everyone to an adequate standard of
living for himself and his family, including adequate food,
3. Resolution A/RES/43/181 20 December 1988 stated in its Article 2 that the main
objective of the strategy was: to facilitate adequate shelter for all by the year 2000,
that the main focus should therefore be on improving the situation of the disadvantaged
and the poor, and that the following fundamental objectives and principles should form
the basis of the Strategy.
4. See for example: Litigating Economic, Social and Cultural Rights: achievements, Challenges
and strategies, Featuring 21 case studies, COHRE, Geneva, Switzerland , 2003; Litigating
Economic, Social and cultural rights: legal practitioners Dossier, COHRE, Geneva,
Switzerland, December 2006.
65
clothing and housing, and to the continuous improvement of

living conditions. The States Parties will take appropriate steps
to ensure the realization of this right, recognizing to this effect
the essential importance of international cooperation based on
free consent.
4] The Committee on Economic, Social and Cultural Rights
(CESCR) has provided clarifications and further elaborations in
General Comment (GC) n4 and, in particular, developments
related to forced evictions in GC n7. According to the CESCR,
the right to housing has to be interpreted in the light of
current conditions, which means that it should be interpreted
in a broad sense and goes beyond having a roof over ones
head. Rather, it constitutes a right to live in security, peace
and dignity5 and applies to everyone.6 The CESCR definition
therefore highlights two particular elements: the right to
housing cannot be subject to any form of discrimination and
this is intimately linked to human dignity.
5] The right to adequate housing underlines the allied element
of adequacy; this means that it is not sufficient to implement
the right to housing if this does not include adequate shelter,
adequate services and all related factors and conditions that
will permit the respect of human dignity. Adequacy reveals
and is therefore measured by economic, social, cultural and
environmental factors. Nevertheless, the Committee has
proposed a series of elements which constitute the core
elements of adequacy: legal security of tenure, availability of
services, material and infrastructure, affordability, habitability,
appropriate location and cultural adequacy. These elements
will be explained in detail in the following section.
6] Adequate housing cannot consequently be viewed in
isolation. It is intimately linked to civil and political rights,
as well as economic, social and cultural rights, such as the
right of freedom of opinion and expression, the right of
association, the right to take part in cultural life, the right
to take part in public decision-making and even the right
to health. The WHO Health Principles of Housing have
therefore underlined the close connectivity between health
and housing, drawing attention to the fact that adequate
housing is also healthy housing. Housing should, in this sense,
include protection against communicable diseases through
water and sanitary supplies, reduction of psychological and
social stress including individual and family security, privacy,
access to comfort, recreation and amenities against noise.
The right to adequate housing thus incorporates individual,
family and social dimensions.
7] The right to adequate housing has to be developed
progressively. This does not entail a larger number of
people having houses; rather it is linked to the progressive
development of the minimum core of the right to housing
Chapter IV
and steps towards improvement in levels of adequacy. In

this sense, Habitat Agenda7 in Article 39 has stated that
progressivity means improving dwellings and neighborhoods,
as well as improving living and working conditions on an
equitable and sustainable basis, so that everyone has access
to adequate shelter that is healthy, safe, secure, accessible
and affordable. This also includes basic services, facilities and
amenities, and the enjoyment of freedom from discrimination
in housing, as well as legal security of tenure. However, certain
State obligations related to housing rights have an immediate
effect, including the obligations to respect and to protect
to right generally and the obligation to respect, protect and
fulfill the right without discrimination (see section 4 below).
2. National improvements in
the definition of the right to
adequate housing
8] National developments on adequacy have defined the
elements which require advancement in order to realize the
right. In the Grootboom case, the South African Constitutional
Court proposed that for a person to have access to adequate
housing all of these conditions need to be met: there must be
land, services, a dwelling.8 It has also underlined that access
to housing should be ensured for all, especially for the poor
who are particularly vulnerable and [whose] needs require
special attention.9 Nevertheless, no specification related to
quality has been provided for adequacy.
9] The South African Constitutional Court has therefore
underlined three key elements relating to the right to housing,
consisting of: the obligation to take reasonable legislative
and other measures (meaning coherent and comprehensive
programmes also balanced and flexible policies to provide
effective remedies for homelessness); the achievement of
the progressive realisation of the right, and both within
available resources. The Court of South Africa has also tied
the right to land to the right to adequate housing, stating in
the case Port Elizabeth Municipality v. Various Occupiers10
that the stronger the right to land, the greater the prospect
of a secure home.
10] In India, the concept of adequacy is also linked to the
concept of a reasonable residence and includes all means
7. Habitat Agenda derived from the United Nations Conference on Human Settlements
(Habitat II), 314 June, 1996 (UN Doc. A/Conf. 165/14, 14 June, 1996). Article 3 of the
Habitat Agenda states access to safe and healthy shelter and basic services is essential
to a persons physical, psychological, social and economic well-being and should be a
fundamental part of our urgent actions for the more than one billion people without
decent living conditions.
8. See Government of the Republic of South Africa & Ors v Grootboom & Ors 2000 (11) BCLR
1169. (CC), para. 35 (Grootboom case).
5. GC n4 para. 7.
9. See idem. para. 36.
6. GC n4 para. 6.
10. 2004, para. 19.
66
Chapter IV
of having a decent existence.11 Furthermore, adequacy of

shelter has been also defined in the case Shantistar Builders
v. Narayan Khimalal Totame12 as a suitable accommodation
which would allow a person to develop the physical, mental
and intellectual and other aspects of his development. The
Court clearly stated that:
The difference between the need of an animal and a human
being for shelter has to be kept in view. For the animal it is
the bare protection of the body, for a human being it has to
be a suitable accommodation, which would allow him to grow
in every aspect physical, mental and intellectual
11] In Chamelli Singh v. State of U.P., the Indian Supreme
Court additionally stated that adequate housing should
develop the spiritual aspects of a human being, and has
provided elements to define the right to shelter. Shelter
comprises an adequate living space, safe and decent
structure, clean and decent surroundings, sufficient light,
pure air and water, electricity and sanitation, as well as other
civic services such as roads. It underlined that this does not
constitute only the right to a roof, but also infrastructure
that enable the development of a person as a cultural beings.
A year later, the Court went even further including the right
to residence and settlement as part of the definition of the
right.13
12] The Canadian Court has stated in the case The Corporation
of the City of Victoria v. Natalie Adams and Others that the
right to shelter is a component of the right to life.
13] In order to define the elements of adequacy, it is necessary
to define the core elements proposed by CESCR so as to clarify
exactly what the minimum core of adequate housing means.
3. Minimum core obligations

related to the right to
housing
14] The definition of the core elements of the right to adequate
housing by the CESCR has permitted the building of a bulwark
against violations. Indeed, the core elements, for example,
habitability, have been crucial when analysing policies and
plans related to housing in the event of natural disasters or
situations of internal displacement. The following elements
have been also crucial to build safeguarding provisions for
vulnerable people, creating a basis for gender initiatives and
protecting people with disabilities. Since these groups of
11. See also Chameli Singh v. State of U.P. (1996) 2 SCC 549, Nawab Khans case (Ahmedabad
Municipal Corporation v. Nawab Khan Gulab Khan & Ors (1997) 11 SCC 121) among others.
12. (1990) 1 SCC 520.
13. PC Gupta v. State of Gujarat and Ors (1994).
people are the most excluded and marginalized, their situation

becomes even more vulnerable during catastrophes.14
15] Adequate housing should therefore comprise the core
elements determined in GC n4 by the CESCR, defined as such:
a. Legal security of tenure: consisting of legal protection
and security against forced evictions, owner-occupation,
harassment and other types of features including public and
private rental accommodation, cooperative housing, lease,
emergency housing and informal settlements.
b. Availability of services, material and infrastructure:
these are related to health, security, comfort and nutrition.
Availability includes access to safe drinking water and
sanitation, energy for cooking, washing facilities, heating
and lighting, food storage, refuse disposal, drainage and
emergency services.
c. Affordability of housing: this relates to housing prices
commensurate with income levels. The committee has invited
States to create incentives (for example, subsides) to ensure
affordability of housing.
d. Habitability: this relates to the structural capacity of
housing to ensure the physical safety of the occupants and
provide protection from cold, heat, damp, wind, rain etc.
The CESCR also encourages Members States to apply the
Health Principles of Housing prepared by WHO as well as the
Global Strategy for Shelter (2000). In the Delfino Case, the
Argentinean Court15 analysed the conditions of a private hostel
on the basis of habitability, and asked the local authorities to
provide an adequate shelter for homeless families.16
e. Accessibility: this is especially applicable for
disadvantaged groups, such as children, and, in particular,
people with disabilities, HIV-positive individuals, older
persons, mentally ill persons, and victims of natural disasters.17
f. Appropriate location: this relates to the availability of
facilities relating to employment, schools, healthcare services
and childcare centres. It also includes the avoidance of
housing persons in polluted areas.
g. Cultural adequacy: this relates to the respect of the
expression of cultural identity, the respect of cultural diversity
which should be permitted by the type of structure and the
materials used for its construction regardless of the economic
development of the country.
14. For more information on the effects of adequate housing for women, see the report on
Women and Adequate Housing, UN Doc. E/CN.4/2006/118, paras 5865, by the Special
Rapporteur on the right to adequate housing, Miloon Kothari.
15. Jorge Alberto Delfino and Others v. GCBA (amparo), 6 November 2004, Buenos Aires
Administrative Court of Appeals, Chamber 1.
16. See also Victor Perez y otros c/GCBA. Cam CAyT Sala I. 25 January 2001.
17. Accessibility in the Grootbomm case was defined by the Court as comprising legal,
administrative, operational and financial hurdles, which should be examined and, where
possible, lowered over time. Accessibility means for a larger and wider range of people
(Grootboom para. 45).
67
Chapter IV
16] In terms of services, materials and infrastructure, CESCR

suggests that these include access to clean drinking water,
energy for cooking, heating, lighting, sanitation and washing
facilities, food storage facilities, refuse disposal, site drainage
and emergency services.
to the obligation of respect, the governments shall refrain

from interfering in the enjoyment of the right to adequate
housing, and shall facilitate the enjoyment of the right.19 (For
example, they should refrain from forced evictions.)
17] In addition to those elements, the former Special

Rapporteur for adequate housing18 has defined nine
additional elements consisting of: access to land, water
and other natural resources; freedom from dispossession,
damage and destruction; access to information; participation;
resettlement, restitution, compensation, non-refoulement and
return; privacy and security; access to remedies; education
and empowerment and freedom from violence against women.
18] In addition to these elements, the right to adequate

housing in national case law comprises an element known as
the housing ladder. This consists of the degree of continued
guaranteed housing, starting from emergency housing,
which usually should be for a short period of time only, to
transitional and communal housing, and finally social or
independent housing. Several examples of the importance of
this concept have be seen at the national level: in the case
City Cape Town v. Rudolph and Others, citizens of Valhalla
Park were placed on the housing waiting list for more than
ten years without an effective decision being made by the
municipality; here, the housing ladder provided an important
argument for analysis of an alleged violation of the right.
19] Another exemplary case is provided by ruling T-025
of 2004 of the Constitutional Court of Colombia, which
encompassed 108 files of 1150 displaced families who asked
the Court for relief of their housing needs and protection of
their land. The displaced families argued that due to the forced
displacement their children did not have food, education and
health. The Colombian Constitutional Court judged that the
policies for displaced persons had not produced results and
had not provided adequate answers to this situation, which
was termed by the Court an unconstitutional state of affairs.
The Court thus decided in favour of the applicants. The
housing ladder provided a tool for measuring the adequacy of
the answers given by the government, and gave the Court an
opportunity to fix a period of time for implementation of the
Action Plan and Programme for displaced families.
4. StateS obligations related to

the right to housing
21] The obligation to respect requires that States do

not interfere directly or indirectly with the enjoyment
of economic or social rights. This obligation is essentially
negative in nature, meaning that the State must not take any
action that diminishes the enjoyment of any given economic
or social right, unless there are justifications for doing so.
realization.
22] In the case SERAC and CESR v. Nigeria, the government
and its agents failed to ensure the respect of the right to
housing of the Ogoni communities by destroying the Ogoni
houses and villages and the use of the security forces. The
African Commission affirmed the violation of the right to
adequate housing and stated that the obligation to respect
also consisted of respect of the right to housing of rightsholders, including the free use of resources to satisfy their
needs.20 State obligation thus required abstaining from
carrying out, sponsoring or tolerating any practice, policy or
legal measure violating the integrity of the individual.21
23] In relation to the obligation to facilitate the enjoyment
of the right, the cases Jaftha v. Shoeman and others and
Van Rooyen v. Stoltz and others22, which dealt with the
existence of an item of legislation in South Africa including
a provision authorizing the sale of a persons home without
judicial supervision in order to cover a debt, were also, in the
view of the South African CC, a violation of this obligation to
respect. Other examples of obligation to respect are provided
in the case Despatch Municipality v. Sunridge Estate and
Development Corporation,23 in which the High Court of
South Africa overturned a section of the Prevention of illegal
Squatting Act.
24] The obligation not to prosecute occupants of state-owned
lands forms part of the obligation to respect. As affirmed in the
Argentinean case Bermejo,24 criminal prosecution of homeless
persons with irregular housing is a violation of the right to
19. General Comment n19 para. 43.

20. Ogoni case para. 45.
20] Following the tripartite typology of state obligations

given in Chapter 3, the obligations deriving from the right to
adequate housing could be defined as the following: in relation
18. E/CN.4/2006/118 para. 11.
68
21. Ogoni case para. 61.

22. Jaftha v. Schoeman and Others and Van Rooyen v. Stoltz and Others (CCT74/03) [2004]
ZACC 25; 2005 (2) SA 140 (CC); 2005 (1) BCLR 78 (CC) (8 October 2004).
23. 1997 4 SA 596 (SE).
24. Bermejo case, Buenos Aires National Criminal Trial Court n11, 2004. For more
information on this case see: UN-Habitat, Forced eviction: towards solutions, First report
of the Advisory Group on forced Evictions to the Executive Director of UN-Habitat, 2005,
pp. 5865.
Chapter IV
housing and will also increase poverty levels.25 Finally, States

should refrain from the eviction of homeless persons even
in cases where such persons are living in public or private
properties. Eviction is incompatible with the requirements of
the Covenant and can only be justified in certain exceptional
circumstances, which will elaborated below.
25. As stated in Pottinger v. City of Miami,26 there is
sometimes an inevitable conflict between the need of
homeless individuals to perform essential, life-sustaining acts
in public and the responsibility of the government to maintain
orderly, aesthetically pleasing public parks and streets.
However, the government has been restrained and ordered
not to evict people living near the railways in Kenya in the
cases of Nidery and Others v. Kenya Railways Corporation or
Kirwa and Others v. Kenya Railways Corporation; or living
in parks in the Canadian case of The Corporation of the City
of Victoria v. Natalie Adams and Others; or in the case of
Bangladesh, any informal settlement in the case of ASK (Ain
o Salish Kendra) v. Government of Bangladesh,27 or slums.28
UN-Habitat along with several NGOs, such as COHRE, the

International Union of Tenants (IUT), Peoples Movement
for Human Rights Learning (PDHRE), Amnesty International
and CARE, among others, are monitoring the effective
implementation of housing policies and participating in the
administration of funds, in order to ensure compliance with the
decisions. (For example, for the NGO monitoring of the Bermejo
case, see UN-Habitat, Forced eviction: towards solutions,
First report of the Advisory Group on forced Evictions to the
Executive Director of UN-Habitat, 2005; for the situation of
slums, see the last report of Amnesty International on Nairobi,
Insecurity and Indignity: Womens experiences in the slums
of Nairobi, Kenya, 2010, report released within the framework
of the campaign Demand Dignity).
26] The obligation to protect requires States to prevent
third parties or non-State actors or other States, including
inter-governmental organizations such as the World Bank,
from violating the enjoyment of economic and social rights.
Third parties or non-State actors include individuals, groups,
landlords, corporations, other States or other entities as well
as agents acting under their authority. The obligation includes,
25. A contrary situation is presented in the case of the Philippines, Simon vs. Commission
on Human Rights 229 SCRA 117 1994, in which the Supreme Court refused a temporary
injunction ordered by the Philippine Commission on Human Rights, in relation to a
demolition of stalls and shanties. The Supreme Court stated that ESC rights where not
self-executing, did not accept to analyse the validity of the demolition in relation to the
protection of housing rights, and refused the injunction.
inter alia, adopting the necessary and effective legislative,

regulatory and other measures to restrain such third parties
and non-State actors from interfering or otherwise violating
economic and social rights; investigating, prosecuting or
otherwise holding accountable those entities that violated
economic and social rights; and providing remedies to victims
of such violations. The obligation to respect is of immediate
effect (e.g., upon ratification of the ICESCR) and not subject
to progressive realization.
27] The SERAC case mentioned above also provides an
example of the necessity to protect the right to housing from
interference by third parties in this case an oil company
that provoked contamination of soil, water and air, as well as
the destruction of homes. Obligation to protect also entails
the obligation to provide alternative accommodation for
homeless persons in the case of forced eviction.
28] Other decisions have acted to protected women in
particular, applying a gender perspective to conflict situations
and the impact of violence on displaced women29 or displaced
children.30
29] Under the obligation to fulfil, States are obliged to
take steps to the maximum of their available resources to
progressively realize the rights contained in the ICESCR.
This obligation can be disaggregated into the obligations
to facilitate, promote and provide. The obligation to
facilitate requires States to take positive measures to assist
individuals and communities to enjoy the right in question.
The obligation to promote obliges the State to take steps
to ensure that there is appropriate education concerning the
right in question. States are also obliged to fulfil (provide) the
right in question when individuals or a group are unable, for
reasons beyond their control, to realize that right themselves
by the means at their disposal.
30] The obligation to fulfil demands that the governments
adopt measures aimed at the full realization of the right
consisting of plans and national housing strategies,
legislation, compensatory measures31 and whatever steps as
necessary32 to provide relief. It is important to emphasize
the point that States should prepare and implement extensive
and inclusive consultations with all civil society, including
and especially homeless persons and all affected, in order
to provide an effective response to housing needs.33 Broad
coordination is required to ensure holistic solutions.
29. Colombian Constitutional Court ruling T-721 of 2003.
26. 810 F. Supp. 1551 at 1554, S.D. Fla. 1992.
30. Colombian Constitutional Court ruling T-215 of 2002.
27. Supreme Court of Bangladesh, 1999.
31. GC n4 para. 11.
28. See last report of Amnesty International, The Unseen Majority: Nairobis Two Million
Slum Dwellers, 12 June 2009, report released in the framework of the campaign
Demand Dignity, available at: www.amnesty.org/en/library/asset/AFR32/005/2009/
en/3b6e7351-8e08-4b61-9d7b-6e3b86eb0057/afr320052009eng.pdf
32. GC n4 para. 12.

33. See, for example, COHRE Report, Listening to the poor: housing rights in Nairobi, Kenya,
2005.
69
Chapter IV
31] National housing plans and programmes are subject to the

notion of progressive realization of the right; they should be
duly implemented and should provide an effective response to
the situation. For this reason, the State should aim to provide
temporary shelter whenever a natural disaster or a grave
situation occurs.34 These decisions imply important budgetary
and economic costs. Availability of resources cannot be an
excuse for not implementing a plan or programme.35
32] In the groundbreaking Grootboom case, the reasonability
approach of the Court was applied to housing programmes:
the SA Court stated that a programme related to housing
rights should include provisions for the poor, especially those
who dont have access to the land and for such that have no
roof, people who are living in intolerable conditions and for
people who are in crisis because of natural disasters such as
floods and fires, or because their homes are under threat of
demolition.36
33] Sometimes States are indirectly tied to obligations with
relation to legislation that impairs the ability of persons
to benefit from adequate housing. In Colombia, the UPAC
(Unity of Constant Acquisitive Power) case37 was marked by
discussions on the impact of court involvement in the financial
system. After a recession and poor public policies, 800,000
debtors with repayment loans on homes found themselves
unable to continue repayments, with some close to losing
their home. The Constitutional Court of Colombia (Colombian
CC) ordered recalculation of the mortgages, tied the UPAC to
inflation, and provided relief to the debtors. In addition, the
Colombian CC ordered the creation of a law to regulate the
housing financial systems over the seven months following
the decision. The ruling modified the entire Colombian system
on housing finance.
34] In the Canadian case The Corporation of the City of
Victoria v. Natalie Adams and Others,38 the Court found
the City in violation of the right to shelter under the Parks
Regulation Bylaw and the Streets and Traffic Bylaw. It
concluded that Victoria does not have sufficient shelter spaces
for homeless persons and that large numbers of homeless
people are therefore left to seek shelter on public property.
It underlined the sensitive nature of the situation due to the
prevalence of illness. The City had prohibited the erection
of temporary shelters in the form of overhead protection,
thereby exposing homeless people to the risk of significant
health problems or even death.39 For these reasons, the Court
34. Cases in which an order has been issued to a government to provide temporary relief
include, among others: The Corporation of the City of Victoria v. Natalie Adams and Others;
Olga Tellis And Others v. Bombay Municipal Corporation; Minister of Public Works and Others
v Kyalami Ridge Environmental Association and Another 2001(3) SA 1151; 2001(7) BCLR
652 (CC) at para. 102, Colombian ruling T-025-2004; Grootboom case para. 52.
35. Grootboom para. 40: the Court stated that the national sphere of government must
assume responsibility for ensuring that laws, policies, programs, and strategies are
adequate to meet the States 26 obligations.
stated that the prohibition on taking a temporary bode

contained in the Bylaws and operational policy constitutes an
interference with the life, liberty and security of the person
of these homeless people.
35] In a recent case Budayeva and Others. v. Russia,40
the European Court of Human Rights stated that serious
administrative flaws had prevented the implementation
of land-planning and emergency relief policies, which had
resulted in the death of the alleged victim and injuries to his
wife and members of their family. The Court concluded that
there had been no justification for the Russian authorities
failure to implement these policies in the hazardous area of
Tyrnauz, and that they had therefore failed in their duty to
establish a legislative and administrative framework.
36] The Inter-American Court of Human Rights has
incorporated implementation of a five-year housing plan
into obligations arising from the duty to make reparations,
stemming from the indemnification of a group of homeless
persons in Guatemala in the case Masacre Plan de Snchez c.
Guatemala s/ Reparaciones.41
5. Forced evictions
37] The prohibition on forced evictions derives from the
element concerning security of tenure, mentioned above.
The Committee has stated that instances of forced evictions
are prima facie incompatible with the requirements of the
Covenant and can only be justified in the most exceptional
circumstances and in accordance with relevant principles of
international law.42 The CESCR has dedicated G.C. n7 to this
issue.
38] For evictions to be justified under the ICESCR, they
must (1) only be carried out in exceptional circumstances;
(2) after all feasible alternatives to eviction that address
the exceptional circumstance are explored in consultation
with the affected community; and (3) after due process
protections are afforded the individual, group or community.
There are two exceptions to this general rule. First, evictions
should never be carried out in a discriminatory manner.
Second, evictions should never render someone homeless or
vulnerable to other human rights violations. What follows is
some general language that lays the foundation for this test
as well as the precise language that establishes this test.
39] General Comment n7 defines forced eviction as the
permanent or temporary removal against their will of
36. See Grootboom case para. 52.

37. See, for example, rulings C-383 of 1999 and C-700 of 1999.
40. 8 March 2009.
38. 2008 BCSC 1363.
41. Sentence of 19 November 2004.
39. See also the Canadian case R. v. Morgentaler, (1988] 1 S.C.R. 30.
70
Chapter IV
individuals, families and/or communities from the homes

and/or lands which they occupy, without the provision of,
and access to, appropriate forms of legal or other protection.
45] The UN has developed a list of principles and guidelines

that also describe states obligations related to forced
evictions, and which state that forced evictions should be:43
40] General Comment n4 requires that notwithstanding the

type of tenure, all persons should possess a degree of security
of tenure which guarantees legal protection against forced
eviction, harassment and other threats. States parties should
consequently take immediate measures aimed at conferring
legal security of tenure upon those persons and households
currently lacking such protection, in genuine consultation
with affected persons and groups.
(a) authorized by law

(b) carried out in accordance with international human
rights law
(c) undertaken solely for the purpose of promoting the
general welfare
(d) reasonable and proportional
(e) regulated so as to ensure full and fair compensation
and rehabilitation, and
(f) carried out in accordance with the present guidelines.
41] General Comment n4 states that instances of forced

eviction are prima facie incompatible with the requirements
of the [International] Covenant [on Economic, Social
and Cultural Rights] and can only be justified in the most
exceptional circumstances, and in accordance with the
relevant principles of international law.
42] General Comment n7 outlines that for an eviction to
be carried out lawfully, States parties shall ensure, prior to
carrying out any evictions, and particularly those involving
large groups, that all feasible alternatives are explored in
consultation with the affected persons, with a view to avoiding,
or at least minimizing, the need to use force. Alternatives
to eviction include onsite upgrading of informal settlements.
43] Even if exceptional circumstances exist and there are no
feasible alternatives to meet those exceptional circumstances
other than eviction, General Comment n7 requires due
process protections. These due process protections are: (a)
an opportunity for genuine consultation with those affected;
(b) adequate and reasonable notice for all affected persons
prior to the scheduled date of eviction; (c) information
on the proposed evictions and where applicable, on the
alternative purpose for which the land or housing is to be
used, to be made available in reasonable time to all those
affected; (d) especially where groups of people are involved,
government officials or their representatives to be present
during an eviction; (e) all persons carrying out the eviction
to be properly identified; (f) evictions not to take place
in particularly bad weather or at night unless the affected
persons consent otherwise; (g) provision of legal remedies;
and (h) provision, where possible, of legal aid to persons who
are in need of it to seek redress from the courts.
44] Finally, General Comment n7 states that, in any event,
evictions should not be undertaken in a discriminatory
manner nor should they render persons homeless or
vulnerable to other human rights violations and that where
those affected are unable to provide for themselves, the State
party must take all appropriate measures, to the maximum of
its available resources, to ensure that adequate alternative
housing, resettlement or access to productive land, as the
case may be, is available.
46] In addition, the development of preventative measures is

required, in particular for disadvantaged groups such as older
persons, children, women and persons with disabilities.
47] In this context, three types of obligation pertain to
forced evictions, relating to the time at which the forced
eviction is either announced or undertaken:
i. Prior to forced evictions, states should:

(a) give appropriate notice and propose plans and
alternatives solutions for accommodation
(b) ensure effective dissemination of relevant information
particularly for vulnerable groups
(c) allow a reasonable period of time for public review
(d) facilitate the provision of legal, technical and other
advice to affected persons about their rights and
options
(e) hold a public hearing.
ii. During the forced eviction, authorities should:

(a) respect the dignity and security of victims
(b) ensure the principles of proportionality, opportunity
(not during religious festivities, at night or prior to
elections) and necessity of the measures
(c) ensure that the process is non-discriminatory.
iii. After the forced eviction, authorities should:

(a) provide immediate relief or allocation (including
alternative accommodation with access to essential
good, medical services, safe drinking water and medical
services)
(b) ensure the participation of women, in particular, in
post-eviction processes
43. See the UN Principles and Guidelines on development-based evictions and displacement,
document A/HRC/4/18, 5 February 2007, Annex 1, available at: www2.ohchr.org/
english/issues/housing/docs/guidelines_en.pdf, in particular, para. 21.
71
(c) provide an effective remedy: consisting of an allocation

or subsidy.
48] Immediate obligations related to forced evictions will

facilitate the enjoyment of the right for marginalized and
vulnerable groups, as well as the abstention from certain
practices that could affect the realization of the right. The
effective monitoring of the situation should be undertaken
immediately, in particular, in relation to homeless persons
and those subject to forced evictions.
49] Regional human rights bodies have adjudicated forced
evictions. For instance, the African Commission has addressed
factual situations involving forced eviction and destruction
of housing in the case of Social and Economic Rights Action
Centre and Center for Economic and Social Rights Nigeria
(SERAC and CESR).44 SERAC and CESR dealt with, inter alia,
forced evictions and housing destruction by both Government
of Nigeria military troops and private security forces belonging
to the Shell Petroleum Development Corporation. The African
Commission held that these acts violated Article 14 of the
African Charter on Human and Peoples Rights as well as the right
to adequate housing which, although not explicitly expressed
in the African Charter, is implicitly guaranteed by Articles 14,
16 (protection of the best attainable state of physical and
mental health) and 18(1) (protection of the family). Similarly,
in the case of Centre for Minority Rights Development
(Kenya) and Minority Rights Group International on behalf
of Endorois Welfare Council v. Kenya the African Commission
stressed that instances of forced evictions were prima facie
incompatible with human rights protection afforded under the
African Charter and other instruments, and they could only be
justified in the most exceptional circumstances and after
all feasible alternatives to eviction have been explored in
consultation with the affected community.45
50] The European Committee of Social Rights has dealt with
forced evictions under both the original and Revised European
Social Charter. With respect to the former, in 2004, the European
Committee of Social Rights considered a collective complaint
dealing with discrimination against Roma in Greece. In its
decision, the Committee held that the systematic eviction
of Roma from sites or dwellings considered to be unlawfully
occupied by them was a violation of Article 16 of the original
European Social Charter (the right of the family to social,
legal and economic protection).46 Under the Revised European
Social Charter, the Committee found the systematic forced
evictions of Roma in Italy from sites or dwellings ostensibly
Chapter IV
unlawfully occupied by them constituted a violation of Article

31(2) (State Parties duty to prevent and reduce homelessness
with a view to its gradual elimination) taken together with
Article E (prohibition on discrimination).47
51] The European Court of Human Rights has found that
forced evictions violate Article 8 (respect for the home) of the
European Convention for the Protection of Human Rights and
Fundamental Freedoms as well as Article 1 of Protocol 1 (peaceful
enjoyment of possessions) to the European Convention. In the
case of Seluk and Asker v. Turkey,48 for instance, the European
Court found that the destruction of the applicants homes by
Turkish military forces was, inter alia, a violation of their rights
to respect for the home as well as a violation of guaranteeing
peaceful enjoyment of their possessions.
52] In 2006, the Inter-American Court dealt with forced
evictions in Colombia and relied on similar rights as those
protected under the European system. In the case of the
Massacres of Ituango v. Colombia, decided on the merits by
the Inter-American Court of Human Rights on 1 July 2006,
dealt with the forced eviction, displacement and housing
destruction in the villages of Ituango, La Granja and El Aro
in Colombia by paramilitaries aligned with the Government
of Colombia. The Inter-American Court found that the forced
evictions and destruction of housing violated Article 11(2)
(the right to be free from arbitrary or abusive interference
with the home) and Article 21 (the right to property).
In its analysis of Article 11(2), the Court relied on the
jurisprudence of the European Court of Human Rights which
has previously held that similar rights under Article 8 of the
European Convention prohibited such acts. Consequently, the
Court held that the forced evictions and housing destruction
violated Article 11(2) read in conjunction with Article 21 of
the American Convention on Human Rights.49
53] National decisions also provide a framework for forced
evictions, which still remain exceptional. This practice has
affected the poor in particular, as in the cases Jaftha v.
Schoeman50 and Van Rooyen v. Stoltz and Other,51 as well as
displaced peoples, migrants and refugees.
54] In South Africa, the Case Port Elizabeth Municipality
v. Various occupiers concerned forced evictions without an
order. The case involved an eviction application by the Port
Elizabeth Municipality against sixty-eight people (occupiers),
who had occupied private land (most having being evicted
47. European Committee of Social Rights, ERRC v. Italy, Collective Complaint n27/2004.
48. Seluk and Asker v. Turkey, European Court of Human Rights, (1998) 26 EHRR 477.
44. African Commission on Human and Peoples Rights, Decision 155/96, The Social and
Economic Rights Action Center and the Center for Economic and Social Rights Nigeria (27
May 2002), Fifteenth Annual Activity Report of the African Commission on Human and
Peoples Rights, 2001-2002, Done at the 31st Ordinary Session of the African Commission
held from 2nd to 16th May 2002 in Pretoria, South Africa.
45. African Commission on Human and Peoples Rights, Decision 276/2003, Twenty-seventh
Annual Activity Report of the African Commission on Human and Peoples Rights
(2009).
46. European Committee of Social Rights, ERRC v. Greece, Collective Complaint
n15/2003.
72
49. Inter-American Court of Human Rights, The Massacres of Ituango v. Colombia (1 July
2006).
50. These cases are particularly pertinent to protection of the poor. In the Jaftha case, Mrs
Jaftha was unemployed, in ill health (heart problems and blood pressure), poor and with
a low level of education. She has two children. She applied for and was granted a state
housing subsidy with which she bought a home. After several payments she stopped
paying her debt, and after being hospitalized discovered that her house was to be sold
in a sale of execution to pay her outstanding debt. In the Van Rooyen case, Mrs Van
Rooyen was also a poor woman, without education, unemployed and with three children.
She couldnt pay her debt.
51. 2005(1) BCLR 78 (CC).
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previously from other lands) within the municipality area.

They had been living on the land for periods ranging from
two to eight years. The court insisted on the importance
of taking into consideration the situation of the vulnerable
people subject to the eviction. After also taking into
consideration the discussions and mediation, as well as the
willingness of the victims to accept an alternative solution
and the reasonableness of an alternative accommodation,
the Court did not confirm the eviction, and instead proposed
concrete relief citing the obligation to procure alternative
accommodation for the poor people concerned.
55] In the Grootboom case, the eviction was executed with
an order, and after deliberation the court concluded that the
current housing programme for providing relief to people in
need had failed and that a reasonable part of the national
housing budget should be devoted to providing such relief.
If this was not done, the states housing programme could
not be considered as reasonable in relation to Section 26(2)
of the SA Constitution.52 In the Grootboom case the victims
included children, therefore, the court stated that the direct
obligation would apply primarily in cases where children were
removed from their families, orphaned or abandoned.
56] Subsequently, in 2004, in the case of City of Cape
Town v. Rudolph and Others,53 the Cape High Court listed
the following additional relevant circumstances to be taken
into account in an eviction situation in the case of unlawful
occupiers: the possibility of making the land available for
the occupiers, the reallocation of the occupier and the
rights of children, older persons, people with disabilities and
households headed by women.
57] In 2005, in the case of President of the Republic of South
Africa and Another v. Modderklip Boerdery (Pty) Ltd and
Others, known as the Modderklip case, 40,000 people moved
onto private land owned by Modderklip Boerdery (Pty) Ltd.
The landowner failed to seek assistance from various State
organs to assist him in enforcing the eviction order granted
by the Pretoria High Court. The Constitutional Court decided
that since the occupiers had no access to alternative land,
they could legitimately occupy the property until alternative
accommodation was made available.
58] Alternative accommodation is also justiciable under
Scottish legislation. The Housing (Scotland) Act 1987
provides the right to two kinds of accommodation: immediate
or alternative accommodation for homeless persons and longterm accommodation for some defined categories of victims.
52. Section 26(2) mentions that everyone has a right of access to adequate housing and
obliges the state to take reasonable measures, within its available resources, to make
sure that this right is realized progressively.
53. The case related to the community of the Valhalla Park; the Metropolitan Municipality
of the City of Cape Town brought an application for the eviction of residents of this
community Some of their members were place on the housing waiting list for more
than ten years; And after from accommodation owned by the City and after ten years of
waiting and the intolerable conditions of living pushed them to move into vacant land
owned by the City.
59] In the recent 2009 case, Ekurhuleni Municipality v.

Dada NO and Others Case,54 the Supreme Court of Appeal
(SCA) overturned a High Court judgement. The High Court
stressed that between the period of the lodging of the eviction
application and the date of the hearing, the municipality had
remained inactivity and did not take any appropriate measures
to ensure the effective location of the affected people. For
this reason, the High Court requested that the Ekurhuleni
Municipality purchase the land, which had been unlawfully
occupied by about seventy-six families (the occupiers). The
Supreme Court of Appeal upheld the judgement that the
municipality had not provided any concrete and effective
remedy to marginalized people, but stated that the decision
of the High Court to order the acquisition of the land by
the municipality lay outside of the judges competence. The
Supreme Court of Appeal stressed this point in para. 14: The
Judge was perhaps right in coming to the conclusion that the
municipality had not dealt with the problems of the informal
settlement on the property with the measure of alacrity which
could reasonably be expected of them. But that did not justify
his adopting a solution which was well outside the limits of
his powers.55
60] This case illustrates the difficulties that poor people face
in accessing housing and the judicial challenges for Courts in
applying the guiding principles mentioned above.
Domestic violence as a source of forced eviction

Since forced eviction is a permanent or temporary removal of
individuals against their will from the home or land they occupy,
without the provision of legal or other forms of protection, we
can affirm that a removal from an accommodation as a result of
domestic violence can be compared to a forced eviction. A link
between domestic violence and forced eviction has been proven
by studies which have demonstrated that violence against women
is related to lack of access to housing.1 Indeed, affordability
and quality of habitation are of crucial importance in terms of
prevention of domestic violence against poor women.2
The Case A.T. v. Hungary examined under the optional
protocol to the CEDAW, has provided an important support
regarding the relation between housing rights and domestic
violence and the state obligations derived from it. The author
of the communication claimed to be a victim of severe domestic
violence, but explained the impossibility in her case of leaving
home, as Hungarian shelters were not equipped to cope with
her disabled child. CEDAW (Committee on the Elimination of
Discrimination against Women) stated that authorities should
guarantee the physical and mental integrity of the author and
her family, ensure that she was provided with a safe place of
residence to live with her children, and provide child support,
legal assistance, and compensation in proportion to the physical
and mental harm and the violation of her rights. (CEDAW
Communication 2/2003, Views adopted on 26 January 2005).
54. Case n280/2008 (SCA) (Ekurhuleni Municipality case).

55. See www.saflii.org/za/cases/ZASCA/2009/21.pdf
73
[Domestic violence as a source of forced eviction]

The European Court of Human Rights is a recent landmark case
law Opuz v. Turkey in 2009 has for the first time protected the
applicant and her mother stating that domestic violence is a
form of discrimination.
The monitoring role of institutions is crucial in this matter.
The National Centre against Violence (NCAV)3 in Mongolia and
NGOs in South Africa have provided transitional and emergency
shelters for poor women who are victims of violence and
their children. The choice of shelter depends on the financial
capacity of the victim and the urgency of the situation. They
ensure a transitional period of three to six months during which
women victims receive training programmes, legal counselling
and psychological support. The operational costs are sometimes
subsidized by local authorities (this is the case in provincial
departments for social development in South Africa).
Amnesty Internationals campaign It is in our hands: stop
violence against women has provided useful information and
advocacy on womens housing issues and domestic violence. For
more information see:
www.amnesty.ca/campaigns/svaw_overview.php
1. See article of H. Combrick, Access to housing for women who are victims of gender
based violence in ESCR Review, (10)2, July 2009.
2. See S. Liebenberg and K. Pillay, Poverty and Human Rights Report of the National
Speak Out on Poverty, Hearings, March to June 1998, convened by SANGOCO,
the CGE and the SAHRC, SANGOCO: Johannesburg.
3. www.owc.org.mn/ncav/eng_index.htm
For more information on the relationship between domestic violence and housing
rights see: UN Special Rapporteur Report: UN doc E/CN.4/2005/43, paras 41 and
43. UN doc E/CN.4/2006/118, para. 32.

61] Several issues emerge from housing rights since poor
and particular groups (for example, migrants, minorities,
internally displaced people, women and children) are the most
discriminated in terms of access and preservation of their
right to adequate housing. In this context, the International
Convention on the Elimination of All Forms of Racial
Discrimination states in its Article 5(e) the obligation of
States parties to: prohibit and eliminate racial discrimination
in all its forms and to guarantee the right of everyone,
without distinction as to race, colour, or national or ethnic
origin, to equality before the law, notably in the enjoyment
of economic, social and cultural rights in particular [] the
right to housing. This is upon reinforced with the equal right
of men and women to the enjoyment of all economic, social
and cultural rights.56
Chapter IV
62] However, there is a significant gap between housing

necessities and the land available to provide housing to
everyone. Discrimination is also present in the form of laws,
policies, regulations, access to mortgage systems and lack of
institutional or financial capacity, as well as failure to provide
an effective response in terms of housing necessities.
63] For this reason, the Special Rapporteur developed
guidelines for States to ensure the prevention of discrimination
in relation to the right to adequate housing. They outlined
strategies for addressing existing obstacles linking the right
to housing to the right to property, and defined guidelines to
address discrimination based on race, origin or gender.
64] The right to housing is of particular importance for people
with disabilities since this right provides independence,
participation and social integration. The United States
Supreme Court has stated that legislation forbidding the
establishment of special houses for people with disabilities
was discriminatory.57
65] Solidarity and social inclusion has been invoked in several
cases by the European Social Charter in relation to minorities,
in particular, migrants and ethnic groups. In relation to the
Roma community, for example, the European Committee of
Social Rights confirmed that States must respect difference and
ensure that social arrangements effectively lead to inclusion
of social groups.58 The European Committee also highlighted
the responsibility of the State to collect data pertaining to
problems related to housing of Roma communities. Similar
responsibilities were stressed in the case European Roma
Rights Centre v. Italy,59 related to the accommodation of
the Roma community in camping sites that were inadequate,
scarce and a source of racial segregation and discrimination.
But the obligation of States goes beyond this, since in the
Committees view, obligations relating to non-discrimination
against any community impose an obligation to take into due
consideration the relevant differences and act accordingly. This
obligation constitutes the implementation of positive action
measures aimed at promoting effective social integration.60 In
the case Ms. L.R. et al v. Slovakia,61 the Committee on the
Elimination of Racial Discrimination also stated in relation to
Roma that the revocation of a housing policy, based in this
case on grounds of ethnic origins, was discriminatory.
66] A historic decision has been provided by the European
Committee in the case of the European Federation of National
57. United States Supreme Court, City of Cleburne v. Cleburne Living Center, Inc., 473 US, 432
(1985).
58. ERRC v. Greece, Complaint 15/2003, Decision on the Merits of 8 December 2004, 19.
59. N27/2004, Decision on the merits of the complaint to the Parties and to the Committee
of Ministers on 7 December 2005. See also other decisions of the European Committee on
Social Rights: European Roma Rights Center vs. Greece, complaint n15/2003; European
Roma Rights Center v. Bulgaria, complaint 31/2005.
60. ECSR, European Roma Rights Centre v. Bulgaria, complaint 31/2005, decision of merits 18
October 2006, para. 42.
56. Article 3 of the International Covenant on Economic, Social and Cultural Rights.
74
61. Communication 31/2003, 10 March 2005.
Chapter IV
Organizations working with homeless persons FEANTSA v.

France62 in which the Committee went further and explained
the scope and extension of state obligations. The Committee
recalled that even if state obligations related to housing
rights cannot be interpreted as obligations of result, they
should imply operational, financial and legal means as well as
monitoring activities, in order to review housing policies and
adapt them, if necessary, in order to provide effective relief
to all categories of persons. States must establish a timetable
and not defer indefinitely the adoption of measures.
67] Women are the most vulnerable group living in poverty,
and as such constitute the segment most touched by housing
programmes. Womens historical, social and economic realities
should therefore be taken into account when ensuring the
full and equal enjoyment by women of their housing rights.63
Specific changes have been made following the UN Resolution
2000/13, Womens Equal Ownership of, Access to and Control
over Land and the Equal Rights to Own Property and Adequate
Housing, which developed crucial grounds for womens
empowerment and recognition.64
68] Taking into account the legal framework for discrimination
against women relating to housing, land and heritage,
the Special Rapporteur proposed a definition of the right
to housing with an explicit gender approach: the right to
housing is the right of every woman, man, youth and child to
gain and sustain a secure home and community in which to
live in peace and dignity (E/CN.4/2001/51, para. 8).
69] Gender approaches have proved extremely important
in analysis of the Grootboom case, since Grootboom
principles are often used to construct gendered frameworks
for interpreting womens housing rights in South Africa.
They have also been used to define the limits of the relation
between housing rights and the right to work. In the Canadian
case Godbout v. Longueuil (City),65 a women hired by the
police was obliged to sign a declaration fixing her residence
inside the city. The Canadian Supreme Court ruled that the
declaration constituted a violation of her right to housing.
70] Important decisions relating to displaced people66 reinforce
the housing rights of populations that are hard-pressed to leave
their homes, either because of situations of internal violence
or natural disasters, as in the Colombian rulings T-919 of 2006
and T-585 of 2006 and injunction 027 of 2007.67 In Nepal,
62. Complaint n39/2006, decision of Merits of 5 December 2007. See also movement ATD
Fourth World v. France, complaint 33/2006, decision of merits of 5 December 2007.
63. Comment 16 notes that women are often denied equal enjoyment of their human rights,
in particular by virtue of the lesser status ascribed to them by tradition and custom, or
as a result of overt or covert discrimination.
64. See also UNCHR Resolution 2001/34 Womens Equal Ownership of, Access to and Control
over Land and the Equal Rights to Own Property and to Adequate Housing, UN Doc E/CN.4/
RES/2001/34 (20 April 2001); see also UNCHR Report E/CN.4/2002/53 2002.
65. (1997) 3 S.C.R. 844.
66. Walter Klin, Report of the Representative of the Secretary-General on the Human Rights
of Internally Displaced Persons (A/HRC/10/13), and Addendum Protection of Internally
displaced people, see doc. E/CN.4/2006/118, p. 20.
67. Colombian Constitutional Court, 1 February 2007.
the case Bhim Prakash Oli et Al. v. Government of Nepal

et al68 confirmed the obligation of the state to implement
and monitoring holistic plans and programmes to integrate
displaced populations into existing housing priorities.
71] Taking into account the recurring violations of cultural
traditions, property and housing rights of indigenous
communities, a number of important decisions have been
taken with regard to such communities in Latin-America.
In the case of the Inter-American Court of Human rights
Moiwana Community v. Suriname,69 the Court ordered to
ensure the property rights of the members of the Moiwana
community and of their traditional territories, and to develop
special measures including mechanisms for delimitation,
demarcation and titling of said traditional territories.
7. The role of NGOs in advancing

the right to housing
72] NGOs can contribute to the empowerment of marginalized
groups with regard to housing rights by undertaking the
following steps:
providing legal advice/advocacy
raising awareness of gender sensitive approaches to
housing rights in legislation and public policies
advocating for harmonization between international
standards and provisions inserted in international
human rights instruments and treaty bodies and national
religions and customary laws
involving the media
providing transitional and emergency accommodation
developing training programmes to support women and
children during reconstruction processes.
73] The advocacy role of NGOs has had enormous impact with
regard to accessing international jurisdictions and promoting
crucial developments in national laws, as referenced in the
FEANTSA and Movement ATD Quart Monde cases mentioned
above. This advocacy role has been particularly important
in the European Committee of Social Rights, to which NGOs
have presented several complaints while defending the most
vulnerable groups of society.
74] Several initiatives have been implemented in relation to
gender approaches to housing rights or even housing rights
and HIV/AIDS. Indeed, Global Coalition on Women and AIDS
(GCWA), launched by the Joint United Nations Programme on
HIV/AIDS (UNAIDS), is a worldwide alliance of civil society
68. 8 February 2006.
69. Moiwana Community vs. Suriname, 15 July 2005 paras 107212. See also Sawhoyamaxa
Indigenous Community v. Paraguay, 29 March, 2006.
75
groups, networks of women with HIV and AIDS, governments

and United Nations organizations, with a view to highlighting
the impact of AIDS on women and girls and mobilizing action
at global, regional and national levels. The International
Centre for Research on Women (ICRW) has developed important
research related in particular to the link between security of
tenure in the mitigation of HIV spreading and costs.70 Other
examples include the Habitat International Coalition Housing
and Land Rights Network (HLRN), the Peoples Movement for
Human Rights Learning (PDHRE), the Amnesty International
It is in our hands: stop violence against women campaign
and the Global Coalition on Women and Aids (GCWA). In 2008
the Centre for Equality Rights and Accommodation (CERA)71
developed an advocates guide for housing rights especially for
marginalized and poor people in Canada.72
70. See the research www.icrw.org/docs/2004_paper_haveandhold.pdf.

71. www.equalityrights.org/cera/
72. Human rights in housing in Canada An Advocates Guide, Centre for Equality Rights
in Accommodation (CERA), 2008 Available at www.equalityrights.org/cera/docs/
National%20Guide%20English%20Final.pdf.
Chapter IV
Monitoring the Right to Housing

In relation to the role of monitoring, UN-Habitat has developed
a set of indicators for the full and progressive implementation
of the right of adequate housing, Monitoring Housing
Rights: developing a Set of Indicators to monitor the Full
and Progressive Realization of the Human Right to Adequate
Housing.1 Also of relevance are the reports presented by the
FoodFirst Information and Action Network (FIAN), in particular,
the parallel report for the second to fourth periodic reports of
the Philippines submitted to the CESCR, 41st session Philippine
States Obligations to its Citizens Right to Adequate Food and
Right to Adequate housing.2 COHRE has developed crucial
information and prepared high level reports monitoring the
housing rights all over the world3 as well as material specifically
addressing the legal enforcement of housing and related rights.4
COHRE also directly litigates housing rights before international
and regional fora as well as intervenes as amicus curiae before
national courts.
1. 2003 available in: www.sheltercentre.org/sites/default/files/UNOHCHR-HABITAT_
monitoringHousingRights.pdf.
2. UN Doc. E/C. 12/PHL/4 available in/ www2.ohchr.org/english/bodies/cescr/
docs/info-ngos/FIAN_Philippines41.pdf.
3. See, for example, Housing rights in Nicaragua: see joint report (COHRE WCCN
and
CENIDH)
2003:
www.sheltercentre.org/sites/default/files/COHRE_
NicaraguaHousingRightsinHistoricalComplexities.pdf.
4. See, for example, COHRE, Litigating Economic, Social and Cultural Rights: Legal
Practitioners Dossier, COHRE: 2006, COHRE Litigating Economic, Social and Cultural
Rights: Achievements, Challenges and Strategies, COHRE: 2002; see also www.
cohre.org/litigation.
Exercises
1) Analyse the framework of the right to housing in your country. Which groups are suffering from culturally inadequate
housing?
2) What housing options are there for low-income and minimum wage earners in your country? In the case of existing
subsidies, are they getting the most disadvantages?
76
77
1. Definition of the right to enjoy the highest attainable standard of physical
and mental health
78
2. Core obligations
80
3. Duties of equal protection and non-discrimination
4. Health of women
5. Progressive realization
81
82
7. Specific protection for marginalized and vulnerable groups
a. Children and Youth
b. Persons with disabilities
c. People with HIV-AIDS
d. Older persons
e. Migrants
f. Displaced people
85
HEALTH
The right to enjoy the highest

attainable standard of physical and
mental health
Chapter IV
US Army Africa
The right to
enjoy the highest
attainable standard
of physical and
mental health
The right to enjoy the highest attainable standard of physical and mental health (right to health)
is central to the strategy for attaining MDGs and is at the core of the fight against poverty. The right
to health is essential to enjoy a life with dignity. However, the right to health has been always
at the core of discriminations and prejudices in relation to groups of the population to whom
access has been diminished. The World Health Organisation (WHO) has developed a framework
for justiciability and provided guidelines in all aspects of this right taking into consideration the
necessity of protecting the especial groups of the population. The following chapter describes
the main guidelines in order to protect the right to health for all and tries to elucidate the core
obligations and state obligations in order to pursue the respect of human dignity, at the core of
this right.

enjoy the highest attainable
standard of physical and
mental health
1] The right to enjoy the highest attainable standard of
physical and mental health (right to health) was defined in
the preamble to the 1946 Constitution of the World Health
Organization (WHO), which states that the enjoyment
of the highest attainable standard of health is one of the
fundamental rights of every human being without distinction
of race, religion, political belief, economic or social condition.
Although the preamble adds that health encompasses a
state of complete physical, mental and social well-being,1
this definition has been criticized since the State cannot
be obliged to provide for everyone the right to health, and
cannot protect everyone against every possible cause of ill
health.2 The right to health is therefore more complex and
multidimensional than first presumed.
1. Preamble of the Constitution of WHO (1946).

2. CESCR, General Comment n14, The right to the highest attainable standard of health
(Article 12 of the International Covenant on Economic, Social and Cultural Rights),
E/C.12/200/4 (11 August 2000) para. 8; OHCHR Draft Guidelines, para. 116.
2] The right to health has been recognized in numerous

international human rights instruments.3 The first guidelines
to the right to health were provided in the Universal
Declaration of Human Rights, which stated that: Everyone
has the right to a standard of living adequate for the health
of himself and of his family, including food, clothing, housing
and medical care and necessary social services.4
3] The fullest definition however, which includes not only
the elements necessary to live a healthy life, but also the
entitlements required to give the right an economic, social,
cultural significance and dimension, is provided by Article 12
of the ICESCR, which states:
(1) The States Parties to the present Covenant recognize
the right of everyone to the enjoyment of the highest
attainable standard of health.
(2) The steps to be taken by the State Parties to the present
Covenant to achieve the full realization of this right shall
include those necessary for:
(a) The provision for the reduction of the stillbirth-
3. See, for example, the International Convention on the Elimination of All Forms of
Racial Discrimination (1966), Article 5(e)(iv); Convention on the Elimination of All
Forms of Discrimination Against Women (1979), Articles 11.1(f) and 12; United Nations
Convention on the Rights of the Child (1989), Article 24; European Social Charter (1961)
as revised, Article 11; African Charter on Human and Peoples Rights (1981), Article 16;
and the Additional Protocol to the American Convention on Human Rights in the Area of
Economic, Social and Cultural Rights (1988), Article 10.
4. Universal Declaration of Human Rights (1948), Article 25(1).
77
Chapter IV
rate and of infant mortality and for the healthy

development of the child
(b) The improvement of all aspects of environmental and
industrial hygiene
(c) The prevention, treatment and control of epidemic,
endemic, occupational and other diseases
(d) The creation of conditions which would assure to all
medical service and medical attention in the event
of sickness.
This list of State obligations in Article 12(2) is illustrative
and non-exhaustive.5
4] Based on this definition, the Committee has developed a
broad description of the right to health, including a package
of interrelated rights. The CESCR states that this: is the right
to the enjoyment of a variety of facilities, goods, services and
conditions necessary for the realization of the highest attainable
standard of health. The right includes both health care and the
underlying determinants of health, including access to potable
water, adequate and safe food, adequate sanitation and
housing, healthy occupational and environmental conditions,
and access to health-related information and education.6
This description symbolizes the
interdependency of all human rights.
interrelation
and
5] The Special Rapporteur on the right to health further

proposes the addition of the right to an effective and
integrated health system, encompassing health care and the
underlying determinants of health, which is responsive to
national and local priorities and accessible to all.7
6] In this sense, the right to health encompasses both freedoms
and entitlements: it requires the exercise of civil and political
rights as well as economic, social and cultural rights. The
freedoms include, for example, the right to make decisions about
ones health, including sexual and reproductive freedom,8 and
the right to be free from interference, such as the right to be
free from non-consensual medical treatment.9 The entitlements
include the right to a health system that provides the basis for
everyone to enjoy the highest attainable standard of health.10
7] Two important aspects are also mentioned: the right
to access and enjoyment of both health services and the
determinants of health; and the right to enjoy social
conditions for the safeguarding of public health, such as
prevention, treatment against epidemics, sanitation and
adequate water conditions, and so on.
5. CESCR General Comment n14, supra note 112, para. 7.
8] Finally, the right to health must respect the principles of

equality and non-discrimination and realized, in particular,
for the most vulnerable sectors of society.11
2. Core obligations
9] The Committee on Economic, Social and Cultural Rights has
further explained Article 12 and the normative content of the
right to health in General Comment n14.12 Based on these
documents, the right to health also contains four inter-related
and essential features or determinants representing essential
components of the right to health and related entitlements:
(1) Availability, (2) Accessibility, (3) Acceptability and (4)
Quality (AAAQ). While these essential elements are often
described in connection with healthcare services, programmes
and goods, they also apply to the underlying determinants of
health as the right to safe drinking water and sanitation or
the right to adequate housing.
10] The AAAQ framework is explained further in General
Comment n14 and is summarized here: Availability. Health
facilities, goods and services must be available in sufficient
quantity within the State party. This includes, for example,
hospitals, clinics, trained health professionals and essential
medicines, as well as underlying determinants, such as safe
drinking water and adequate sanitation facilities.13
11] Accessibility. Health facilities, goods and services must
be accessible to everyone without discrimination, with a
particular focus on vulnerable or marginalized people. They
must be physically accessible, meaning within safe physical
reach of all sections of the population, including people
with disabilities and people in rural areas. They must be
economically accessible, meaning affordable to all. In this
sense, procurement of healthcare should respect the principle
of equity and should prioritize the most vulnerable groups
of society. Moreover, accessibility includes the right to seek,
receive and impart information on health.14 In the Indian
Case Indra Sawhney v. Union of India,15 for example, the
Supreme Court observed that in order to eradicate poverty
and to eliminate inequalities, it is necessary to ensure free
medical care, education, access to employment, housing, land
reforms and free water.
12] Following the proposals of General Comment n14,
access to health includes: access to basic preventive,
curative, rehabilitative health services and health education;
regular screening programmes; appropriate treatment of
6. Ibid. See also CESCR General Comment n14, supra note 112, para. 9, 11.
7. Report of the Special Rapporteur on the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health, P. Hunt, E/CN.4/2006/48 (3
March 2006) 4.
11. General Comment n1, paras 18 and 19.
8. See also Article 16(1)(e). of CEDAW.
13. Ibid. para. 12(a).
9. Ibid.
14. Ibid. para. 12(b).
10. Ibid
15. 1997 supp (3) SCC 217.
78
12. See, generally, CESCR General Comment n14.
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prevalent diseases, illness, injuries and disabilities, preferably

at community level; the provision of essential drugs; and
appropriate mental health treatment and care.16 WHO further
clarified that these provisions should be implemented at all
levels, including primary, secondary and tertiary healthcare.
13] Access to health information is also an essential
aspect of the right to health and is linked to the concept
of accessibility.17 Indeed, health information enables people
to promote their own health and to claim quality health
facilities, goods and services from the State and others.18
Therefore, States must ensure that health information is
available and accessible to all, and that it is provided in local
languages.19 The right to health also includes the freedom of
all people to seek, receive and impart information concerning
health issues.20 Indeed, other essential aspects of the right
to health, such as meaningful participation and effective
accountability, depend upon having access to information,
as well as the right to express views freely.21 While health
information must be made available, personal health data
must be treated with confidentiality.22
14] CEDAW considered the case of a violation of the right
to information in relation to a sterilization of a woman
patient member of the Roma Community and mother of
three children; that had not given previous consent for this
intervention. Indeed, before the surgery, Mrs A.S. was asked
by the doctor to fill out some consent forms that she did
not understand. After the surgery, she realized that she had
been the subject of a sterilization procedure She argued that
she would never have agreed to it as she has strict Catholic
religious beliefs that prohibit contraception of any kind,
including sterilization. CEDAW Committee concluded that
violations [had taken place] of the right to an informed
consent as well as the right to information on family planning,
the right to appropriate services in connection with pregnancy
and the post-natal period and the right to determine the
number and spacing of her children, of the Convention on the
Elimination of Discrimination Against Women in the case A.S.
v. Hungary.23 As a result the Hungarian Government modified
the Public Health Act in relation to the right to be informed
in the case of this type of medical procedures.
15] In the case K.H. and Others v. Slovakia,24 eight Roma
women were unsuccessful in conceiving again after receiving
gynaecological and obstetric treatment. They were also asked
to sign documents prior to discharge from the hospital without
being unable to identify the contents of the documents. The

Slovakian health authorities stated that there was no right
to photocopy medical records. However, the European Court
of Human Rights found that access to files containing ones
personal data must be allowed in order to respect the right to
prior and proper consultation for health care.
16] Acceptability. Health facilities, goods and services
must be respectful of medical ethics, including the right
to confidentiality, and they must be sensitive to cultures,
communities and gender. Furthermore, health information
must be provided in local languages.25
17] Quality. Health facilities, goods and services must
also be scientifically and medically appropriate and of good
quality. Furthermore, the underlying determinants of health
must be appropriate and of good quality too.26 Thus, for
example, water and health education, in addition to hospitals
and medicines, must be of good quality.
Core obligations of the Right to Health

(based on General Comment n14)
Access to healthy facilities, goods, services on a nondiscriminatory basis and with particular focus on vulnerable
and marginalized groups
Access to minimum essential food, which is nutritionally
appropriate, adequate and safe, to ensure freedom from
hunger for everyone
Access to basic shelter, housing and sanitation and a supply
of safe and potable water
Access to essential drugs as defined in the WHO Action
Programme on essential Drugs
Equitable distribution of all health facilities, goods and
services
Adoption and implementation of a national public health
strategy and plan of action (designed and approved on a
participatory basis, including benchmarks indicators, and
periodic review, adjustments and updates).
Ensure reproductive, maternal (pre and post-natal) and
child healthcare
Provide immunization against major infectious deceases.
Take measures to prevent, treat and control epidemic and
pandemic diseases.
Provide education and access to information concerning the
main health problems in the community, including methods
for prevention and control.
Provide training for health personnel including education
on health and human rights.
16. See General Comment n14, para. 17.

17. Ibid. para. 12(b)(iii).
18. Report of the Special Rapporteur 2006, supra note 114, para. 49(c)(iii).
19. See ibid. See also CESCR General Comment n14, para. 12(b)(iv).
20. CESCR General Comment n14, supra note 112, para. 12(b)(iv).
21. Report of the Special Rapporteur 2006, supra note 113, para. 49(c)(iii).
22. CESCR General Comment n14, supra note 112, para. 12(b)(iv).
23. Communication n4/2004, CEDAW /C/36/D/4/2004.
25. Ibid. para. 12(c).
24. ECHR Application n32881/04, 2009.
26. Ibid. para. 12(d).
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18] It is important to emphasize that non-discrimination
and equality are central to the right to health. The right to
health proscribes any discrimination in access to or provision
of healthcare and the underlying determinants of health.27
Moreover, special attention must be paid to promoting
the equality of women and men, and of vulnerable and
marginalized groups.28 For example, in the above mentionedcase, A.S. v. Hungary, the CEDAW Committee urged the State
party to take a holistic approach in order to eliminate multiple
forms of discrimination against women and, in particular, to
ensure material equality among Roma girls.29
19] Additionally, careful consideration of health resource
allocations is required to ensure that health policy and
spending promotes equality rather than contributing to
or perpetuating inequalities.30 The obligation to ensure
non-discriminatory treatment also requires the removal of
obstacles that impede the enjoyment of health (de iure and
de facto). On this basis, equality is immediately enforceable.31
20] One further important aspect of the right to health is the
participation of the population in all health-related decisionmaking at the community, national and international levels.32
Participation implies, among other factors, the rights to seek
and impart health-related information, the right to express
views freely, and the right to basic health education, as well as
transparency in policy-making processes. Full participation on a
non-discriminatory basis also requires special attention to sharing
information with and seeking the views of both women and men,
as well as the views of vulnerable and marginalized people.33
4. Health and women

21] Women face health issues differently as men. For this
reason, biological and socio-cultural factors on the right to
health of men and women should be taken into account when
talking about womens right to health.34
27. Ibid. para. 18. Discrimination is prohibited on the grounds of race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth,
physical or mental disability, health status (including HIV/AIDS), sexual orientation and
civil, political, social or other status, which has the intention or effect of nullifying or
impairing the equal enjoyment or exercise of the right to health. Ibid.
22] Rural women as well as displaced, indigenous women,

women with disabilities, women living in poverty and
suffering HIV-AIDS face a double discrimination and exclusion.
Concerning rural women as per example, the Convention on
the Elimination of All Forms of Discrimination against Women
(CEDAW), in its art. 14 affirms that States Parties shall take
all appropriate measures to eliminate discrimination against
rural women in the field of health care in order to ensure, on
a basis of equality of men and women, access to health care
and family planning. In relation to women with disabilities,
it is important to note that they suffer clearly a double
discrimination and in some cases, women who suffer domestic
violence are treated that way because of their condition of
disability.
23] Sexual and reproductive rights, pregnancy and issues
related to birth planning ask especial action in order to avoid
limitations to their right. In Colombia, several jurisprudence
has protected pregnant women as subjects of especial
protection when private health care institutions discontinue
de provisions of health care services based on the non
payment of the charges.35 The protection has also covered the
case of pregnant women working in domestic places,36 the
protection of the right to health of displaced women37 and
the social integration of women with disabilities.38
5. Progressive realization
24] In addition to AAAQ, other concepts are crucial to
the right to health. First, the right to health is subject to
progressive realization. Many States do not currently possess
the resources necessary to fully implement the right to
enjoyment of the highest standard of attainable health for all
people. Nonetheless, States must take deliberate and concrete
steps toward the full realization of the right to health for
all.39 The corollary to the obligation to progressively realize
the right to health is that there is a strong presumption that
retrogressive measures taken in relation to the right to health
are not permissible.40
25] While the right to health is subject to progressive

realization, States have an immediate core obligation that
constitute, at the very least, minimum essential levels of
primary healthcare, food, housing, sanitation and essential
28. See ibid. para. 18.

29. See Concluding Comments of the Committee on the Elimination of Discrimination against
Women: Hungary, CEDAW/C/HUN/CO/6, 10 August 2007.
30. See ibid. para. 19.
35. Tutela n 088/08, Constitutional Court of Colombia, 5 February 2008. See also: T-l06 of
1996, T-694 of 1996, T-662 of 1997 and T-844 of 2002.
31. General Comment n16, paras.6, 29 and 30.
36. Tutela n -730/99 Constitutional Court of Colombia, 1 October 1999.
32. Ibid. para. 11 (emphasis added).
37. SU-1150 of 2000, T-1635 of 2000 and T-327 of 2001; T-045 of 2010 among others.
33. See, for example, ibid. para. 54 (discussing the right of individuals and groups to
participate in decision-making processes for developing any policy, programme or
strategy related to the right to health).
38. SU-1167 de 2001.
34. See General Comment n14 page 12-13.
40. Ibid. para. 32.
80
39. Ibid. paras 3031.
Chapter IV
drugs.41This core obligation also includes adopting and

implementing a national health strategy and plan of action.42
26] The Constitutional Tribunal of Peru analysed the
inaction of the Peruvian authorities in providing medication
for HIV patients in the case Azanca Alhel Meza Garca.43 The
tribunal underlined that the State authorities were unable to
provide full medical treatment to a HIV positive patient who
was not able, due to financial constraints, to obtain this high
cost medication. The Tribunal underlined that people with
HIV/AIDs are especially vulnerable and should be particularly
protected based on the principles of solidarity and human
dignity. The Tribunal concluded that the State did not
comply with its duty to take concrete measures in order to
provide antiretroviral treatment to HIV-positive adults in the
framework of Article 7 of the Peruvian National Law n26626
on HIV/AIDS.44
27] The same analysis was developed by the Supreme Tribunal
of Justice of Venezuela who asked the national authorities
to develop a preventive plan and education programmes to
assist persons living with HIV/AIDS. The Court went further
and even ordered the President to adjust the amount of the
allocation for HIV/AIDS treatments in the case Cruz del Valle
Bermdez y otros c. MSAS s/amparo.45
28] The right to health requires access to effective mechanisms
of accountability, including judicial remedies at both the
national and international level.46 Victims of violations of the
right to health are entitled to adequate reparation, which
may take the form of restitution, compensation, satisfaction
or guarantees of non-repetition.47 In additional to judicial
remedies, national ombudsmen and human rights commissions
should also address violations of the right to health.48
29] The right to health imposes an obligation to respect,
entailing an immediate, enforceable obligation on States to
refrain from interfering with the existing enjoyment of rights,
in this case, the right to health.49 It includes refraining from
imposing discriminatory practices, limiting equal access to
all persons, limiting access to sexual and reproductive health
or to sexual education and information, promoting unsafe
41. Ibid. para. 43.
42. Ibid.
drugs, and acting against safe environmental conditions.50

The suspension of legislation that upholds the enjoyment of
the right to health or enactment of a law that interferes with
the enjoyment of the right to health constitutes a violation
of this obligation.51
30] The obligation to protect entails the obligation to avoid
the infringement of third parties of the right to health. In order
to respect this duty, States have to ensure the protection of
the population from any practice detrimental to health. They
have to secure equal access to healthcare and health services,
control the marketing of health equipment and medicines by
third parties, and ensure that health practitioners follow
ethical codes of conduct and meet appropriate standards of
education. States are responsible for the protection of the
population from harmful traditional practices that interfere
with access to pre and post-natal care and family planning.
Particular mention is made of female genital mutilation. States
should take action to ensure the protection, in particular,
of older people, children and women, and vulnerable and
marginalized groups. The privatization of health services
does not violate, per se, the obligation to protect. Finally,
the obligation to protect also entails the obligation to avoid
limitations to health information and services.52
31] The Case Yanomani Community v. Brazil53 of the
Inter-American Commission of Human Rights relates to the
implementation of a plan of exploitation of the vast natural
resources in the Amazon region, which impacted the territory
of the Yanomami Indians. The plan compelled the community
to abandon their habitat and seek refuge in other places, and
exposed them to epidemics. The Commission stated that this
action constituted a violation of the obligation to protect and
concluded that a violation of the right to the preservation of
health and to well-being had taken place (Article XI of the
American Declaration of the Rights and Duties of Man).
32] In relation to the obligation to fulfil, States are required
to take the necessary steps to ensure the realization of the
right to health. In this sense,54 according to General Comments
nos. 12 and 13 in concordance with General Comment 14,
the obligation to fulfil incorporates three obligations:
an obligation to facilitate related to a state duty to take
positive measures in order to enable and assist individuals
and communities to enjoy this right; an obligation to provide
through which the State will ensure that the population will
realize their right and will provide facilities for this purpose;
and an obligation to promote.55 The Committee has stated in
this regard that promoting includes: (i) fostering recognition
of factors favouring positive health results, e.g. research and
43. Azanca Alhel Meza Garca, EXP. n2945-2003-AA/TC, Lima, Peru.

44. Op cit, para. 24.
50. General Comment n14 paras 3435.
45. Expediente n15.789. Sentencia n196.
51. General Comment n14 paras 34 and 50.
46. Ibid. para. 59.
52. Ibid. paras 35 and 51.
47. Ibid.
53. Case 615, Decision of 5 March 1985, resolution 12/85, Annual Report 19841985.
48. Ibid.
54. Ibid. paras 36, 37 and 52.
55. See para. 33, General Comment n14.
81
provision of information; (ii) ensuring that health services are

culturally appropriate and that health care staff are trained to
recognize and respond to the specific needs of vulnerable or
marginalized groups; (iii) ensuring that the State meets its
obligations in the dissemination of appropriate information
relating to healthy lifestyles and nutrition, harmful traditional
practices and the availability of services; (iv) supporting
people in making informed choices about their health.56
33] In the case Viceconte, Mariela c. Estado Nacional, the
Federal Court of Argentina upheld a violation of the right to
health and the duty of the State to fulfil in a case related
to an epidemic of hemorrhagic fever that threatened and
affected more than 3.5 million people. The Court held that the
Minister of Health and Public Services did not take specific
and appropriate measures and that the government failed to
develop a vaccine, since this was not widely available and
profited the private sector. The Court found a violation of the
right to health and ruled that the government should take
more action to fulfil the right to health.57
7. Specific protection
for marginalized and
vulnerable groups
a. Children and youth
34] Children and young people, in particular, are protected
under the right to health, which demands special action on
the part of States in order to make the principle of the best
interests of the child a reality, and to avoid infant and child
mortality. The Committee on the Rights of the Child has
stated, for example, that adolescents face particular physical
health and mental health risks, including violence, drug use
and alcohol abuse and sexually transmitted infections (STIs).
The increasing number of teenage pregnancies and the
number of very young mothers are particularly alarming, and
are more common in the case of adolescents living in poverty
and in rural areas.58
35] The Committee recommends that State Parties pay
particular attention to adolescent health, taking into account
the Committees General Comment n4 of 2003 on adolescent
health and development in the context of the Convention
on the Rights of the Child. This protection becomes stricter
when it relates to children or young people from ethnic
minorities or with disabilities, since these groups face
various forms of discrimination. It is therefore indispensable
56. See para. 37 General Comment n14.

57. Ministerio de Salud y Ministerio de Economa de la Nacins/ Accin de Amparo, Causa
n31.777/96 (1998).
58. See, for example, UN Committee on the Right of the Child, Concluding Observations:
Ecuador, CRC/C/15/Add.262.
82
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to analyze the relation between the right to health and the

components necessary to ensure a life in good health, such
as adequate food, clothing, adequate housing, safe drinking
water, sanitation, a proper environment, as well as pertinent
educational and informative initiatives for the effective
enjoyment of the right.
36] For example, the Civil Court of the Province of Neuquen
in Argentina studied the case of children of the community
of Paynemil that were poisoned by contaminated water in the
case Menores Comunidad Paynemil. The Civil Court upheld
the petition of the applicant and stated that the Executive
Provincial Power failed in its duty to protect the population
since it did not take financial steps or implement any concrete
policy to stop the violation. As a result of the case, the Court
ordered that the necessary treatment to supply 250 litres of
safe drinking water per habitant be instituted, and that the
necessary steps to preserve the environment be taken.59
37] The importance of protecting the right to health of
children was highlighted again in the landmark case Minister
of Health v. Treatment Action Campaign presented by the
NGO Treatment Action Campaign (TAC case)60 to the High
Court of South Africa. The Court assessed the reasonableness
of the South African government policy of impeding the AIDS
pandemic through prevention of Mother-to-Child Transmission
(MTCT) through breastfeeding. The devised programme
by the SA government dealt with MTCT using a medication
called Nevirapine. However, availability and access to this
medication was restricted to only two medical sites in each
province, named Pilot Sites, which served only 10 per cent of
the total population. As a result of this policy, only private
clinics who worked as research and training sites were
allowed to prescribe the medication, whereas public hospitals
were not. The government argued that the administration
of Nevirapine was reasonable, explaining that budgetary
constraints affected the expansion of the availability of the
medication to all medical sites, and further stated that the
lack of clean water in rural areas could make the Nevirapine
useless. Arguments related to concerns regarding the efficacy
and safety of Nevirapine were also raised by the government.
38] The Court rejected these arguments and noted that the
medication would save many lives among the South African
population. The Court further stated that these policies were
not reasonable since the restrictions on Nevirapine were too
rigid and limited the access of mothers and children to the
medication. The Court underlined the point that the right to
health included also family care, and that it is a duty of the
State to help parents attain access to healthcare when they
are unable to afford it. Affirming that the justiciability of ESC
rights improves the live of poor people and disadvantaged
segments of society and emphasizing the tripartite typology
59. S/accin de amparo, Argentina 19 May 1997. See also Mariela Viceconte op cit. 52.
60. Minister of Health v. Treatment Action Campaign, 2002 (5), SA 721 (CC).
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of State obligations and the progressive realization of ESC

rights, the Court ordered that Nevirapine be made available
in all centres, further stated that budgetary constraints could
not be an excuse for governments, and ruled that the previous
measures were therefore unreasonable.
b. People with disabilities

39] Disability has a particularly pernicious relationship with
poverty since poor access to health care can rapidly lead or
exacerbate it. On the basis of the Convention on the Rights
of Persons with Disabilities and its Optional Protocol adopted
in 2006, States are particularly obligated to accomplish all
necessary steps to ensure equality, to design inclusive policies
to facilitate their integration in society, and to ensure their
effective participation in all levels of life. The Convention
establishes where adaptations are necessary in order to allow
them to effectively exercise their rights.
40] The Supreme Court of Canada, relying on the principle
of equality, studied medical care in the province of British
Columbia in the case Eldridge v. British Columbia.61 The
healthcare system operates through two primary mechanisms:
the Hospital Insurance Act and the Medical and Health
Care Services Act. However, neither programme pays for
sign language interpretation for the deaf. The appellants
were all born deaf and preferred sign language as a means
of communication. For this reason, they argued that the
absence of interpreters impairs their ability to communicate
with their doctors and other healthcare providers, and thus
increases the risk of misdiagnosis and ineffective treatment.
The Supreme Court stated that the provincial government
failed to provide sign-language interpreters as a part of
the publicly-funded healthcare system and argued that the
effects of discrimination are especially relevant in the case
of disability. The Court concluded that the health system was
discriminatory since it infringed upon their right to equal
benefit under the law without discrimination and prevented
the most vulnerable members of society from taking advantage
of healthcare benefits.
41] In a Brazilian case related to a young man suffering
from mental illness who received inhuman treatment from
medical staff, the Inter-American Court stated that special
obligations for care and protection of people with disabilities
must be provided (Damiao Ximenes Lopez v. Brazil).62
42] The European Court of Human Rights provided a ruling on
a similar case, Storck v. Germany, stating that: With regard
to persons in need of psychiatric treatment in particular, the
Court observes that the State is under an obligation to secure
to its citizens their right to physical integrity under Article 8 of
the Convention. For this purpose there are hospitals run by the
State which coexist with private hospitals. The State cannot

completely absolve itself of its responsibility by delegating its
obligations in this sphere to private bodies or individuals. []
The Court finds that, similarly, in the present case the State
remained under a duty to exercise supervision and control over
private psychiatric institutions. Such institutions, [] need
not only a licence, but also competent supervision on a regular
basis of whether the confinement and medical treatment is
justified.63
43] In another case, the African Commission on Human
and Peoples Rights examined the legislative framework for
mental health (Health Acts) in Gambia in the case Purohit
and Moore v. The Gambia related to people in a psychiatric
hospital. The applicants alleged that they had not given their
consent for treatment and that the conditions of the hospital
were not optimal. Additionally, they were not allowed to vote.
The facts also show that people detained in the psychiatric
hospital were picked up from the streets and were most likely
poor people; moreover, that African countries are generally
faced with the problem of poverty which renders them
incapable to provide the necessary amenities, infrastructure
and resources that facilitate the full enjoyment of this right.64
The Commission concluded that on the basis of the principle
of non-discrimination and equal protection, the State should
provide medicines, adequate material and medical care for
people suffering mental health problems, even in the case of
resource constraints, and asked that the cases of all persons
detained under the Health Acts be reviewed.65
c. People with HIV-AIDS

44] In general, people with HIV-AIDS are protected by
tribunals, which consider them as a group entitled to special
protection. However, special considerations appear in
relation to the access to and availability of medication, nondiscrimination measures for people suffering from this virus,
and the financial considerations in relation to the cost of
drugs and treatment for treating those living with HIV-AIDS.
45] In the case of Azanca Alheli Meza Garcia,66 related to
an amparo presented in order to request the provision of
full HIV-AIDS treatment, the Peruvian Constitutional Tribunal
underlined the importance of the content of social rights
for the effective protection of civil and political rights. The
Tribunal stressed the intrinsic connection of the right to
health with the right to life, particularly in the case of people
with HIV-AIDS. It added that the State should comply with
its obligations within a reasonable time as an indispensable
condition for realizing the progressive realization of the right
of health and implementing public policies, regardless of the
63. Application n61603/00, judgment of 16 June, 2005, p. 103.
61. (Attorney General) 1997 SCR 624.

62. Damio Ximenes Lopes v. Brazil, Case 12.237, Report N38/02, Inter-Am. C.H.R., Doc. 5
rev. 1 at 174 (2002).
64. See Elderidge Case para. 84.

65. Communication n241/2001, 16th Activity Report 2002 2003, Annex VII, 2003.
66. Expediente n2945-2003-AA/TC.
83
amount of available financial resources. The Tribunal clarified

that financial resources are means to providing services and
realizing goals (social investment) and not a goal in itself
(expenditure).67 As an outcome of this decision, the Tribunal
asked the Minister of Health to provide medication to the
applicant and to advance the implementation of Article 8 of
Law n28243, 2004, which focuses on the necessity of giving
priority to budget resources for people with HIV-AIDS and
living in extreme poverty.68
46] In the case Cruz del Valle Bermudez y otros c. MSAS69
s/amparo, the Constitutional Court of Venezuela stated that
the refusal to deliver drugs needed to treat HIV-AIDS virus
constituted a violation of the right to health. The Venezuelan
Constitutional Court requested the implementation of
a preventive National Health Plan in conjunction with
complementary educational policies. The Court ordered
modifications to the budget to provide more available
resources and to undertake a study to clarify the minimum
needs of the population suffering from HIV-AIDS in order
to develop a preventive holistic programme. In a later case
in 2001, the Constitutional Court of Venezuela ordered the
government to ensure a regular supply of drugs for HIV-AIDS
sufferers and, further, linked the right to heath to the right
to benefit from scientific progress. Based on the need to
increase the benefits from scientific progress and medication,
the Court extended the effects of the decision to all persons
suffering from the virus and requesting the Social Security
System (Instituto Venezolano de Seguridad Social-IVSS) to
cover their treatment and medical test costs.70
47] The Inter-American Commission in the case Case Jorge
Odir Miranda Cortz of 2001 understood the right to health
as part of the Article 26 of the American Convention on
Human Rights related to the Progressive Development of
economic, social and cultural rights,71 and requested the
adoption of precautionary measures for groups of persons
living with HIV-AIDS on the basis of the right to personal
integrity (Article 1 of the American Declaration/5.1 and
5.2. of the American Convention). Affirming that ESC rights
contain not only negative but positive obligations, the InterAmerican Commission declared that States must respect their
obligations to protect people with HIV-AIDS, who are in a
position of vulnerability, and compared their situation to that
of cruel, inhuman and degrading treatment. The Commission
also added that the behaviour at the health authorities was
particularly discriminatory since the applicant underwent
67. Ibid. paras 35 and 44.
68. Ibid. para. 48.
69. S/amparo, Expediente n15.789 Sentencia n196.
70. Case Lopez Glenda y otros v. Instituto Venezolano de los Seguros Sociales (IVSS) s/accion
de amparo, Expediente 00-1343, Sentencia n487.
71. Article 26 of the American Convention on Human Rights states: The States Parties
undertake to adopt measures, both internally and through international cooperation,
especially those of an economic and technical nature, with a view to achieving
progressively, by legislation or other appropriate means, the full realization of the rights
implicit in the economic, social, educational, scientific, and cultural standards set forth
in the Charter of the Organization of American States as amended by the Protocol of
Buenos Aires.
84
Chapter IV
discriminatory practices, consisting of the use of special red

bags for laundry, special cups marked with XXX, and other
practices that resulted in the stigmatization of patients
suffering from HIV-AIDS. In consequence, the Commission
asked the State of El Salvador to elaborate a framework law
on HIV-AIDS incorporating the State obligation to provide
antiretroviral medication, and ordered the modification
of all care practices (medical and nursery) so as to avoid
discriminatory behaviours.
d. Older persons
48] Older people shall be entitled to protection, promotion
and support in various areas of care protection including
medical and health services. States shall provide programmes
and long term strategies for the support of informal care
within the private sphere, the community based system and
specialized institutions. Care services should be adapted to
older people.
49] Last 28-30 September 2011, The First International
Conference on Age-friendly Cities took place in Dublin,
Ireland, from 28 to 30 September 2011, to strengthen the
WHO Global Network of Age-friendly Cities and advance
thinking and approaches on how to make cities more agefriendly. It brought together a broad range of leaders and
senior managers from existing members of the Global Network,
senior managers of municipal authorities, CEOs interested in
or already championing an Age-friendly City initiative, civil
society organizations as well as senior professionals across
the public, private and voluntary sectors in areas such as
transport, urban planning, health care, housing, research and
academia
e. Migrants
50] Migrants are routinely victims of a wide range of limitations
to their economic, social and cultural rights, particularly,
those related to social security and healthcare due to their
precarious status and lack of documentation. Despite these
restrictions, courts have advanced the protection of migrant
children, women and workers, surmounting obstacles for their
protection and applying the principles of non-discrimination
and equal protection.
51] The Committee of Social Rights of the Council of Europe
in the decision International Federation of Human Rights
Leagues (FIDH) v. France recognized the right of access to
medical care for migrants, stating that legislation, practice
which denies entitlement to medical assistance for foreign
nationals, within the territory of a State Party, even if they
are illegally, is contrary to the Charter.72 As a consequence,
72. See case International Federation of Human Rights Leagues (FIDH) v. France, Complaint
n14/2003, 3 November 2004, para. 32.
Chapter IV
France changed its policy by publishing the 2005 CIRCULAR

DHOS/DSS/DGAS and included treatment to all minors
residents in France who are not effectively beneficiaries under
the State medical assistance scheme.
52] In the case of migrant workers, the European Court of
Human Rights protected an undocumented female domestic
employee in the decision Siliadin v. France.73 The Court
considered that she was the subject of domestic slavery
since her documentation was retained and she was asked to
work seven days per week without payment. Although the
case did not rule on the right to health of migrant workers,
the decision reveals the necessity of respecting migrant
workers in legislation, including access to health insurance
and healthcare.74 In another case, the European Court stated
that the abrupt removal of medical treatment due to the
deportation of a migrant to another country exposed him to
the risk of distressing circumstances, comparable to inhuman
treatment.75 Finally, the Constitutional Court of Spain has
stated that all migrants have the right to register as a
requirement for access to healthcare services, and that all
undocumented migrants should have access to all ESC rights.76
f. Displaced people
53] Art 18 and 19 of the Guiding Principles on Internal
Displacement (GPID) affirm that authorities should provide
access to essential food and portable water, basic shelter and
housing, appropriate clothing and essential medical service
and sanitation, as well as access to psychological services,
with especial attention to women, and to the prevention of
diseases, including HIV-AIDS.
54] Affirming that internal displacement is the cause of
multiple human rights violations and that displacement
73. 26 July 2005, Application N73316/01.
causes extreme vulnerability, the Constitutional Court of

Colombia, in its decision SU-1150 of 2000, affirmed that the
allocations to displaced people are more critical than other
public expenses.77 The Court has also protected the right to
health of indigenous people forced to abandon their land due
to internal displacement.78 In decision T 1134 of 2008, the
Court stated that displace people should receive a minimum
subsistence consisting on including food, safe drinking
water, housing clothing and access to health services and
sanitation.

55]
Support the right to health as a justiciable right as itself,
independently of its connection to the right to life.
Establish a national plan with health protection for
special groups of the population, including subsidies
for people suffering HIV-AIDS, for internally Displaced
People and indigenous communities.
Follow of inclusive policies, with especial emphasis on
vulnerable people, integrating a holistic approach to
health, including preventive and curative measures as
access to health care, medication and psychological
support
Follow up the implementation of special health measures
Support the establishment of adapted measures related
to health care for people with disabilities.
Support the creation of mechanisms to deal with
displacement
Promote health education and community involvement
in Special health measures/mechanisms to deal with
displacement, women, indigenous communities
Support clinical training of health professionals
74. European Court of Human Rights (2005), Case Siliadin v. France, Application
n73316/2001, judgment 26 July 2005 page 71.
75. European Court of Human Rights, D v. United Kingdom, Judgment of 2 May 1997, 24
EEHRR 423, paras. 53-54. See also Human rights Committee (HRC), C. v. Australia, CCPR/
C/76/D/990/1999, 28 Octiber 2002, para. 6. See also CRC (2009 and 2004), Concluding
Observations: France, CRC/C/FRA/CO/4, 11 June 2009, 30; CRC/C/15/Add.240, 30 June
2004, 18.
77. See also Constitutional Court of Colombia Decisions T-268 of 2003, T-025 of 2004 and T
1135 of 2008 among others.
78. Constitutional Court of Colombia Decision T-1105 of 2008.
76. Constitutional Court, Spain, Judgment 236/2007, 7 November 2007.
Exercises
1) Should health care be provided to everyone? If yes, in what conditions? Please justify.
2) Kindly analyze and compare the reasoning in the cases Soobramoney v. Minister of Health KwaZulu Natal and
Minister of Health v. Treatment Action Campaign (TAC case) in relation to the right to health and in particular, the
right to everyone to receive emergency medical treatment.
3) What is, in your opinion, the relationship between medical ethics and human rights? Please clarify.
85
The right to safe drinking water

and sanitation
87
1. Evolution of the right to safe drinking water and sanitation
91
93
4. Duties of equal protection, non-discrimination and special attention to
vulnerable and marginalized groups
94
5. Limits to the right to safe drinking water and sanitation
95
Water &
sanitation
88
2. Normative content
Chapter IV
Asianet-Pakistan
The right to
safe drinking water
and sanitation
In July 2010, the UN General Assembly officially recognized the right to water and sanitation as
a human right (GA/10967). This decision came after the 3rd World Water Forum held in Kyoto in
2003, at which the right to water was declared an essential right. Furthermore, it has been the
result of many important developments, such as the General Comment n15 of the Committee on
Economic, Social and Cultural Rights (CESCR), resolutions by the Human Rights Council (HRC),
declarations by several international fora, legal and judicial advancements in various countries
as well as the nomination and the work of the Independent Expert on the issue of human rights
obligations related to access to safe drinking water and sanitation. MDG 7 Ensure environmental
Sustainability integrates water and sanitation as a major goal and seeks through its Target 10
to halve the proportion of people without sustainable access to safe drinking water and basic
sanitation. But despite legal recognition, an estimated 884 million people, the majority of them
in Africa, still do not have access to safe drinking water. More than 2.5 billion people live without
basic sanitation and some 1.5 million children under 5 die each year from sickness caused by
water-borne diseases. The degradation of water quality in rivers, streams, lakes and groundwater
systems has a direct impact on ecosystems and human health. As the lead UN agency for water
sciences and education, UNESCO is implementing an array of programmes to further expertise in
this field. UNESCOs International Hydrological Programme (IHP) is actively engaged in fostering
science and knowledge to protect the quality of surface waters and groundwater systems. Likewise,
UNESCO is an active contributor to the monitoring of the state of the worlds freshwater resources
and promotes capacity building for better management of water resources through water centres
and chairs operating under its auspices in many parts of the world.
1. Evolution of the right to

safe drinking water and
sanitation
1] In the face of major human and environmental crises,
the international community has made efforts to recognize
the human right to water and sanitation and to clarify
its normative content. This right is indeed referenced
implicitly and explicitly in a number of international and
regional treaties and declarations.1 In July 2010, the UN
1. For additional information on the evolution of the right to water, see, for example:
Outcomes of the International Experts Meeting on the Right to Water. UNESCO, UNESCO
Etxea, 2009, pp. 2-4.
General Assembly officially recognized the right to water

and sanitation as a human right (GA/64/292) and declared
that the human right to safe and clean drinking water and
sanitation is essential for the full enjoyment of life and all
human rights. On 30 September 2010 the Human Rights
Council adopted Resolution A/HRC/RES/15/9 in which it
affirms that the human right to safe drinking water and
sanitation is derived from the right to an adequate standard
of living enshrined in art. 11 of the ICESCR.
2] The lack of access to water has been recognized as a key
obstacle to improving human well-being, fostering education
and eradicating poverty. In order to implement the universal
right to water and sanitation, locally adapted solutions
87
are necessary and require exchange and dialogue among

stakeholders and practitioners at all levels, often from diverse
cultural backgrounds and different countries.
3] Fostering cooperation to prevent and resolve conflicts is
therefore a paramount task for water governance, and must
include intercultural dialogue on water issues. As the lead
UN agency for science (including water sciences), culture,
the human sciences, communication and education, UNESCO
represents a scientific resource for Member States, upon
which they can rely to address the societal and technical
challenges arising from the situation, and to achieve progress
in attaining the MDG targets related to water.
4] Inequality in accessing water resources is a historic
problem. Today, millions of people still suffer from inequitable
distribution. Poverty, division of power, privatization and
exclusion are among the causes of the problem and the
current water and sanitation crisis. In addition, water is
intrinsically related to environmental health and ecosystems,
reinforcing the urgent need for its protection.
5] This crisis will dramatically affect the attainment of all MDGs
by 2015 not just MDG 7, which seeks to Ensure Environmental
Sustainability and halve the number of people without sustainable
access to safe drinking water and basic sanitation by 2015, but
all MDGs that have an inevitable connection to it.
6] The right to water and sanitation is implicitly mentioned
in the International Covenant of Economic, Social and
Cultural Rights (1966). Articles 11 and 12 specify a number
of rights that are indispensable for the realization of the right
to an adequate standard of living including adequate food,
clothing and housing. The wording of these two articles of
the Covenant indicates that this catalogue of rights is not
intended to be exhaustive. Since the right to water and
sanitation is a precondition of securing an adequate standard
of living, it is implicitly enshrined in these articles.2
7] The Committee has previously mentioned the human right
to water in relation to other human rights in General Comment
n6 (paragraphs 5 and 32) and in General Comment n14 on
the right to health, stating that the right to health extends
not only to timely and appropriate health care but also to the
underlying determinants of health, such as, access to safe and
potable water, an adequate supply of safe food, nutrition and
housing. Despite these recognitions, States were reluctant
and avoided to apply a human rights based approach to water
and sanitation.
8] Following recognition of this right, in March 2008 the UN
Human Rights Council decided to appoint, under resolution
7/22, an Independent Expert on the issue of human rights
obligations related to access to safe drinking water and
Chapter IV
sanitation. The mandate of the Independent Expert was

established and an Independent Expert was appointed in
September 2008. The mandate was renovated as Special
Rapporteur on the human right to safe drinking water and
sanitation (HRC res 16/2).This renovation of the mandate
confirms the will of clarifying the content and advancing
towards an implementation of the human right to safe
drinking water and sanitation.
9] It is General Comment n15 on the right to water that
clarifies the scope of the right linking it to adequate standard
of living and the right to health. General Comment n15 states
that: The human right to water entitles everyone to sufficient,
safe, acceptable, physically accessible and affordable water for
personal and domestic uses and adds that the right to water
contains both freedoms and entitlements. Freedoms comprise
the right to maintain access and freedom from contamination,
the protection against arbitrary disconnections and the nondiscrimination in access, while entitlements refer to allowing
all people equal opportunities to enjoy the right to safe
drinking water and sanitation as well as participation in
related decision making-processes.
10] In addition, the Guidelines for the realization of the right
to drinking water supply and sanitation, adopted in 2005 by the
UN Sub Commission on the Promotion and Protection of Human
Rights (Sub Commission Guidelines),3 clarify the element of
sanitation including at least a latrine. Sanitation concerns the
existence of appropriate facilities and behaviours. It reduces
exposure to disease by providing a clean environment in which
people can enjoy a healthy standard of living in a hygienic
environment. Sanitation also increases security and privacy
between men and women and has a special role in educational
institutions: separated sanitation for girls and boys at school
ensures a safe and healthier learning environment.
11] But today sanitation is recognized as a distinct right.
Indeed, following the Sub Commission Guidelines, the
Independent Expert chose to focus on the human rights
obligations related to sanitation. She presented a report to the
Human Rights Council in September 2009. In November 2010,
the CESCR issued a statement on the right to sanitation,4 which
further explained the nature of this right. Sanitation is defined
as a system for the collection, transport, treatment and
disposal or re-use of human excreta and associated hygiene,
States must ensure that everyone, without discrimination,
has physical and affordable access to sanitation, in all
spheres of life, which is safe, hygienic, secure, socially and
3. UN document E/CN.4/Sub.2/2005/25.
2. This interpretation has been developed by the CESCR in its General Comment n15.
88
4. Available at: www.ohchr.org/EN/Issues/WaterAndSanitation/SRWater/Pages/Sanitation.

aspx
Chapter IV
culturally acceptable, provides privacy and ensures dignity.

The Committee is of the view that the right to sanitation
requires full recognition by States parties in compliance with
the human rights principles related to non-discrimination,
gender equality, participation and accountability.
12] In accordance with the General Comment and the Sub
Commission Guidelines, water should also be supplied in an
adequate and sustainable manner, so as to respect human
dignity. Adequacy of water should be interpreted extensively
and the level fixed should take into account the conditions
and necessities of the populations, including religious, social
and cultural elements, as well as economic. Furthermore,
sustainability requires that access to water be preserved for
future generations to the extent possible.
13] In addition, adequacy refers to the following preconditions
in relation to the right to water and sanitation: Availability:
refers to the sufficient and continuous supply of safe water and
sanitation for personal and domestic use (drinking, cooking,
washing and sanitation). But what constitutes the sufficient
amount of water to be provided? General Comment n15 does
not define a specific amount of water, but instead endorses
conformity with World Health Organisation (WHO) guidelines,
noting that some individuals or groups may require additional
amounts due to health, climate or work conditions.
14] The Independent Expert document on the issue of
human rights obligations related to access to safe drinking
water and sanitation, Climate Change and Human Rights for
Water and Sanitation, provides clarification on the meaning
of availability: The most widely used indicator of water
scarcity is water availability less than 1,000 cubic meters per
inhabitant a year. This is used as a threshold below which it is
assumed that the social demand for water cannot be addressed.
Nevertheless, the water for domestic use is only calculated as
a small part of the water used in total, less than 10% of the
global average, while agriculture and industry are much larger
water users (70% and 20% respectively in the global average).
If you assume that a quantity of 100 litres per capita per day
is needed to cover the right to water, this amounts to 36,500
litres or 36.5 cubic meters per capita and per year. This is just
a fraction of the water available even in the most arid regions.
In this regard, the IPCC underlines that access to safe drinking
water is more dependent on the level of technical infrastructure
of the water rather than the quantity of runoff.
15] Accessibility to water and sanitation means access at
various places, within, or in the immediate vicinity of each
household, educational institutions, professional places and
wherever necessary to protect human dignity and public
health. Accessibility includes the following aspects:
Physical accessibility: safe drinking water and
sanitation should be reachable for all groups of the
population. Because of their role in managing water
resources inside communities, accessibility of water has

a special meaning for women who are often obliged to
walk kilometres in order to access sources of drinking
water. According the WHO, in order to have access to a
minimum of 20 litres per day, the distance of the source
of water should be between 100 and 1000 meters or
between 5 to 30 minutes total collection time.5
Economic accessibility: people should have access to
safe drinking water and sanitation without depending
on their capacity to pay. However affordability does not
mean free of charge, except in those situations in which
the beneficiaries are not able to pay for it.
Non-discrimination: The non-discrimination clause in
relation to water and sanitation demands that access
to water be ensured for all, without distinction on any
basis. Special attention should be given to poor and
marginalized people living in rural areas where sanitation
is often neglected and water is not sufficient or of
dubious quality. For this reason, positive actions should
be undertaken to ensure access to safe drinking water
and sanitation for all human beings. And
Information: access to information empowers
participation in the administration and enjoyment of
water resources.
16] Quality of water refers to the fact that water should be
clean to be safe in taste, odour and colour as well as not
polluted and free from microbes and parasites, chemical and
radiological substances.
17] The Indian case Attakoya Thangal v. Union of India
W.P.6 describes how clean water is related to environmental
issues and the right to life. The petitioners claimed that a
scheme for pumping up groundwater to supply potable water
to the coral isles of Lakshadweep in the Arabian Sea would
disturb the freshwater equilibrium, leading to salinity in the
available water resources and causing greater long-term harm
than short-term benefits. The Kerala High Court, recognizing
the fundamental importance of the right to water, requested
that the Central Ground Water Board further investigate the
claim, monitor the process, and present a report. The Court
recognized the right of people to clean water as a right to life
enshrined in Article 21, observing that: The right to life is
much more than a right to animal existence and its attributes
are manifold, as life itself. (). The right to sweet water and
the right to free air are attributes of the right to life, for these
are the basic elements which sustain life itself.7
18] Water and sanitation should be affordable, which means
that direct and indirect costs and charges associated with
5. See table summary of requirement for water service level to promote health in Guy
Howard and Jamie Bartram, Domestic Water Quantity: Service level and Health, in
available at: www.who.int/water_sanitation_health/diseases/WSH03.02.pdf
6. 1990 KLT 550.
7. See also case law from India on the right to water connected to the right to life: in
M.C. Mehta v. Union of India and Others Case (1988), Virendra Gaur and others v State of
Haryana (1995) and Vellore Citizens Welfare Reform v. Union of India.
89
securing water must be affordable

by any beneficiary without causing
a substantive diminution of his
or her capacity to afford essential
goods. People are not entitled
to free water and sanitation
services, but rather are expected
to contribute financially, and in a
reasonable way, to their supply. Any
payment for water services has to
be based on the principle of equity.
The Committee has clarified the
content of the affordability of water
and sanitation and the relation to
the obligation to fulfil. This will be
explained under the section on the
obligation to fulfil.
Components and sub components of the right to water and sanitation
Accessibility
Physical accessibility
Economic accessibility
Non Discrimination
Accessibili
Access to information
Quality
Potable and clean water
Protection and
admnistration of the
sources of water and its
distribution
19] Water should be accountable:

access to justice and effective
remedies should be available and
easily claimable by any person
who has been denied access to
water and sanitation. This includes
access to judicial and non-judicial
mechanisms.
20] Despite this framework,
difficulties appear when fixing the
level of water sufficient to live a life in dignity. For example,
the Human Development Report 2006 states that 20 L/person/
day constitute sufficient water. Moreover, WHO Guidelines
quantify basic access to water saying that: 20 l/d has a
high impact on health and from 50 l/day to secure all health
requirements and from 100 l/d access is considered optimal.
However, these indicative amounts should be adjusted
depending on the needs of particular groups, their situation
of vulnerability and the related environment (indigenous
groups, pregnant women, ill people, older people or people
with HIV-AIDS).
21] The Committee followed this approach, fixing an amount
of approximately 50 litres of water per day, with 20 litres
as a minimum. However, the Committee was aware that
marginalized and poor people would need more litres of water,
and stressed the importance of ensuring that disadvantaged
and marginalized farmers, including women farmers, have
equitable access to water and water management systems.
22] The case Mazibuko v. City of Johannesbourg, the first
decision on this issue in South Africa,8 is one of the most
interesting cases related to the right to water. The decision
8. In South Africa, the Bill of Rights (1996) states that Everyone has the right to have
access to () sufficient food and water (Sec. 27) and the Water Services Act (1997)
defines basic water supply as the prescribed minimum standard of water supply
services necessary for the reliable supply of a sufficient quantity and quality of water to
households, including informal households, to support life and personal hygiene.
90
Chapter IV
Cross-cutting
principles
Non-discrimination, equal
protection, participation
accountability, adequacy,
impact and sustainability
Availability
Quantity
Regularity
Sustainability
Affordability
Subsidies
Reasonable charges
was the result of jointly efforts of a number of grassroots

organizations including the Centre on Housing Rights and
Evictions (COHRE), the Coalition against Water Privatization
(CAWP) and the Centre for Applied Legal Studies (CALS)
at the University of Witwatersrand. The victims, a poor
community living in a suburb of Soweto alleged a violation of
the right to water arguing that the basic water policy violated
art. 27(1) of the Constitution and that the installation of
prepaid meters was discriminatory and administratively
unfair. The petitioners solicited to increase the minimum
from 25 to 50 litres per day. Indeed, for many years the
petitioners piped an unmetered and unlimited supply of
water charged R68.40 (about US$9) per month on the basis
of a deemed monthly consumption of 20 kiloliters of water
per household. However monthly consumption attained 67
kiloliters/month and habitants from Soweto did not pay the
charges. After the implementation of a new plan in Soweto
aiming at reducing water losses and improving rate payment,
the suburb of Soweto was selected in 2004 as the area for first
implementation of the project. A system of pre-paid meters
was installed which would provide each household with 6
kiloliters of free water per month or 25 liters per person per
day. Habitants who will consume more should pay in advance.
However the system, in the view of the Soweto habitants
appeared to be discriminatory since the pre-paid system was
not established for other non-payers much of them from
governmental institutions. A discrimination against the
Chapter IV
poorest was argued and as a result, the petitioners asked the

Courts to declare the free basic water policy unconstitutional.
23] Contrary the decisions of the lowers Courts, the
Constitutional Court of South Africa decided that the water
policy of 25 liters per person was reasonable with article
27(1) of the Constitution and that the procedure was fair and
legal, thus not discriminatory. High Court and the Supreme
Court of Appeal fixed respectively a minimum of 50 and 42
liters liters per person per day as the minimum to meet basic
requirements for the households. The Constitutional Court
rejected this approach based on the minimum amount of
water and instead ruled on the basis of what was reasonable.
The arguments based of the reasonabless approach of the
Court were the following: the amount of 6 kiloliters of free
water was allocated to rich and poor alike and the city was
not obliged to provide a specific amount of water but rather
to progressively fulfill the right.
3. StateS obligations
24] The tripartite division of state obligations to respect,
protect and fulfil is discharged, when it comes to the right
to water and sanitation, in the following manner:
25] The obligation to respect corresponds to the
governments duty not to interfere with access to water.
It includes refraining from interfering in equal access to
adequate water; and arbitrarily interfering with customary or
traditional arrangements for water allocation. Disconnection
or contamination of water supply would in certain cases
when unfairly, unjustified and arbitrary also constitute a
violation of the obligation to respect.
situations: (a) at a minimum flow rate of not less than 10

litres per minute; (b) within 200 metres of a household; and
(c) with an effectiveness such that no consumer is without a
supply for more than seven full days in any year. The Court,
though, decided that disconnection of an existing water
supply constituted a violation of the obligation to respect
the right of access to a water supply.
27] However, in the case Manqele v Durban Transitional
Metropolitan Council in South Africa, Durban High Court
(2002), Ms. Manqele, an indigent and unemployed mother
of seven children, suffered the disconnection of her water
supply as a result of non-payment of a water invoice for
an outstanding amount of R10,000 (about UD$1,400). Ms.
Manqele alleged a violation of the Water Services Act 108
of 1997 due to the disconnection of water sources, which
for her was unlawful and prejudicial to her dependants. The
South African Water Services Act 108 prescribed a minimum
standard of water supply services on quantity and quality for
households, including informal households. As no guideline
or regulation defining the quantity existed at that time,
the Durban Transitional Metropolitan Council set a level of
6 kilolitres of water/month for free for domestic use as the
amount that would fulfil obligations related to water under
the Act. However, Ms Manqeles consumption far exceeded
the 6 kilolitres. Since no guidance or regulation existed to
interpret the content of the right to water in this specific
case, the Court found that it was unenforceable. Durban
Metro Council therefore was forced to temporarily reconnect
her water supply. This case underlines the necessity of
comprehensive regulation and national legislation on the
right to safe drinking water and sanitation in order to clarify
the minimum core contents that will allow enforcement of
the right to water.
28] The obligation to protect means that governments
are obliged to take action in order to impede third parties
from infringing water and sanitation rights. This obligation
includes, for example, the obligation to avoid water pollution
and to control the unaffordable increase of prices of water and
sanitation supply. The Committee mentions the responsibility
of the private sector in relation to this obligation. Indeed,
it affirms that States should follow up private actions with
democratic principles, as well as respect of the right to
participate in the design and implementation of policies.
Poor populations are forced to rely on informal water supply
systems and this micro dimension should be included when
addressing the responsibility of States.
26] The Committee clarified that a disconnection should

meet the following conditions: respect the due process
and appropriate form of procedural protection. Numerous
jurisprudence has provided specific content. In the case
Residents Bon Vista Mansions v. Southern Metropolitan
Local Council,9 the High Court of South Africa stated that
disconnecting the water supply constituted a violation of
the right to water. The High Court ordered the municipality
to reconnect the water supply since the disconnection
was not fair and equitable in accordance with Section
4(3) of the South African Water Services Act 108 (1997),
since reasonable notice was not given to the residents of
the Bon Vista Mansions. Following this jurisprudence, the
Implementing Regulation of Water Services Act, Section
3(b) of 2001 clarified that the minimum quantity of potable
water should correspond to 25 litres per person per day or
6 kilolitres per household per month in the following three
29] In the case Menores Comunidad Paymenil s/accin de

amparo10 the indigenous Mapuche community of Paymenil
presented an injunction through the Public Defender of
Minors of Neuquen against an oil company that polluted
their water supply and environment with lead and mercury.
9. 2001 (App. n12312).
10. Cmara de Apelaciones en lo Civil de Neuquen, Sala II, 19 de mayo de 1997.
91
Chapter IV
The Public Defender stressed that since access to water is

a fundamental right, and since the right to health can
be guaranteed through access to water, the Government
neglected to protect the health of the population, especially
children. After analysing the evidence, the Court of Appeal
considered that the government of Argentina failed to act
upon the considerable warnings given by other authorities
on the situation of pollution and sustained the injunction,
ordering them to:
(1) Supply 250 litres fresh water daily/habitant within two
days of the decision
(2) Ensure the supply by any appropriated mean within fortyfive days of the decision
(3) Identify the damages and provide necessary treatment
(4) Take appropriate actions to preserve the environment.
30] As a result of these orders, and taking into account that the
measures were not taken in their totality by the Government,
the Public Defender of Minors of Neuquen submitted the case
to the Inter American Commission on Human Rights (Mapuche
Paynemil and Kaxipayi Communities).11 The Commission,
alleging failure to comply with the court decision, ordered
the State to supply the indigenous community of Paynemil
Mapuche, which had been exposed to water contaminated
with lead and mercury, with safe drinking water, and to
ascertain damages and provide necessary medical treatment
(obligation to protect and to fulfil).
31] In the case Centre on Housing Rights and Evictions
(COHRE) v. Sudan,12 the African Commission on Human and
Peoples Rights has for the first time elaborated on the right
to water under the African Charter on Human and Peoples
Rights. The case deals with forced eviction, destruction of
public facilities, and killings and rapes in the Darfur region of
the Sudan against black African tribes, in particular, members
of the Fur, Marsaleit and Zaggawa tribes. After analysing the
forced evictions and the failure of the government to protect
its citizens by providing effective remedies, the Commission
recalled its reasoning in the SERAC Case and stated that
the right to water is also guaranteed by the African Charter
in its Articles 4, 16 and 22. The Commission affirmed that
being complicit in looting and destroying foodstuffs, crops and
livestock as well as poisoning wells and denying access to water
sources in the Darfur Region13 caused a violation of the right
to a highest attainable standard of health. The Commission
also confirmed the violation of the right of all peoples to
their economic, social and cultural development.
right to safe drinking water and sanitation and ensure universal

access. In the case of the right to water and sanitation, this
obligation is disaggregated into the obligation to facilitate,
promote and provide.
33] The Committee has clarified the content of this obligation
as follows: the obligation to facilitate requires the State
to assist individuals and communities to enjoy the right to
water. The obligation to promote compels the State party to
take steps in order to ensure appropriate education regarding
the hygienic use of water as well as the protection of water
sources. And the obligation to provide obliges States parties
to provide water whenever individuals or groups are unable. 14
34] States are obliged to fulfil their obligation by
implementing legislative measures to ensure access to safe
drinking water and sanitation, and are compelled to adopt a
national water strategy, a plan of action and to monitor the
realization of the right.
35. In order to ensure the affordability of the right, States
parties must use: (a) a range of appropriate low-cost
techniques and technologies; (b) appropriate pricing policies
such as free or low-cost water; and (c) income supplements.
Core obligations on the right to water and

sanitation
Ensure access to the minimum essential amount of water,
sufficient and safe for personal and domestic use
Ensure the right to access to water and water facilities and
services on non-discriminatory basis with special emphasis
on marginalized and vulnerable groups
Ensure physical access to water facilities namely
regularity, sufficiency and proximity of households as well
as personal security
Ensure equitable distribution of water and sanitation
facilities and services
Adopt and implement a national plan of action and strategy
on participatory and transparent basis including indicators
and benchmarks with special emphasis on marginalized and
vulnerable groups
Monitor the implementation of such a plan of action and
strategy
Adopt low targeted water and sanitation programmes.
32] The obligation to fulfil asks governments to provide

necessary resources in order to progressively implement the
11. Case n12.010.

12. African Commission on Human and Peoples Rights, Communication 296/2005.
13. Op. cit. para. 126.
92
14. See paras. 27 and 28.
Chapter IV
Core elements for a strategy or programme to

ensure the right to safe drinking water and
sanitation
Any programme or strategy to ensure access to safe drinking
and sanitation should (a) be based upon human rights law and
principles; (b) cover all aspects of the right to water and the
corresponding obligations of States parties. It should aim to:
(a) Reduce depletion of water resources through unsustainable
extraction, diversion and damming
(b) Reduce and eliminate contamination of watersheds
and water-related eco-systems by substances such as
radiation, harmful chemicals and human excreta
(c) Monitor water reserves
(d) Ensure that proposed developments do not interfere with
access to adequate water
(e) Assess the impacts of actions that may impinge upon
water availability and natural ecosystems watersheds,
such as climate change, desertification and increased soil
salinity, deforestation and loss of biodiversity
(f) Increase the efficient use of water by end-users
(g) Reduce water wastage in distribution
(h) Create response mechanisms for emergency situations
(i) Establish competent institutions and appropriate
institutional arrangements to carry out the strategies and
programmes
(j) Provide systems of accountability for citizens, NGOs and
grass roots organizations in general, and
(h) Assist other States through international cooperation.
4. Duties of equal protection,

non-discrimination
and special attention
to vulnerable and
marginalized groups
36] Everyone, without discrimination, is entitled to have
access to safe drinking water and sanitation. However, the
Covenant underlines the groups of population that might
be discriminated in relation to access to water, and asks
for prioritizing vulnerable and marginalized groups such as
children, women, ethnic communities as well as refugees,
older persons, poor, rural and nomadic communities who
suffer from scarcity or non-access to water resources and
water supply. The Covenant thus proscribes any form of
discrimination on any grounds and asks the State to take
appropriate measures to facilitate and invest in water
resources, in order to empower people in achieving the right
to proper water and sanitation.
37] General Comment n15 pays special attention to women,
people suffering from HIV/AIDS and ethnic communities.
These constitute the most discriminated-against population
groups, due to their historic exclusion from decision-making

processes.
38] In relation to children, Article 24 para. 2 of the
Convention on the Rights of the Child requires States parties
to combat disease and malnutrition through the provision
of adequate nutritious foods and clean drinking water.
Educational institutions should supply children with adequate
drinking water and sanitation as a matter of urgency.
39] States should therefore provide sufficient water but
also water facilities.In the case City Council of Pretoria v.
Walker,15 the Constitutional Court of South Africa analysed
the non-discrimination clause in a decision related to water
charges between different municipalities in South Africa. Mr.
Walker, the respondent, resident in a white area called Old
Pretoria, owed to the City Council of Pretoria, an amount of
R4753.84. Without denying he owed the charges, he argued
that the electricity and water charges were levied on a
differential basis by the Council of Pretoria. He argued that the
white area of Old Pretoria was differently charged in relation
to the black, composed of the cities of Atteridgeville and
Mamelodi. Indeed, the residents of Old Pretoria were taxed
on a tariff based on actual consumption whereas residents
of the black, poorly developed in terms of infrastructure for
municipal services, were levied on the basis of a uniform rate
(flat rate) for every household. Mr Walker argued that this
differentiation meant that the residents of Old Pretoria were
subsidizing the two cities. In addition, the council adopted
a policy of selective enforcement against defaulters. The
Council took legal action to recover arrears from residents of
Old Pretoria but failed to take similar action in the townships,
where a culture of non-payment for services existed.
40] The Court analysed whether the differentiation meant
discrimination and concluded that in relation to the policies
adopted, they were rationally connected to the governmental
objectives, so no discrimination was implicit. However, the
Court stated that the differentiation between black and white
residents constituted an indirect violation of Section 8(2) of
the Interim Constitution of South Africa, and called to mind
that under apartheid differentiation was based in particular
on geographic and racial grounds. The Court ruled that Mr.
Walker was discriminated against as a racial minority. The
Courts affirmed therefore that no racial group should be made
to feel that the legal framework is likely to be applied against
its members.
41] In Colombia, two decisions concerning the protection of
displaced people and indigenous communities highlighted the
necessity to elevate the status of the right to water to that of
an autonomous right. Indeed, the Constitutional Court in the
case T-025 of 2004 affirmed the right of displaced people
to have access to safe drinking water and sanitation on an
15. (CCT8/97) 1998 ZACC 1; 1998 (2) SA 363; 1998 (3) BCLR 257 (17 February 1998).
93
Chapter IV
equal basis. In the case T-760 of 2008 urgent action was

ordered to provide water access in a situation of malnutrition,
which led to the death of several members of an indigenous
community, including children.
living and to adequate food, but not as a human right with

freedoms and entitlements. There is therefore an urgent need
to advance its recognition and inscription in constitutional
and legal frameworks.
44] Recourse to the courts is only one of several means to

implement the right, since administrative measures and public
accountability should lead to its fulfilment, implementation
and dissemination as a human right.
Women, water and sanitation

Generally, women are responsible not only for managing the
water supply in households but also providing this supply.
At the 2nd World Water Forum in The Hague (2000) it was
recognized that, in addition to being prime users of domestic
water, women used water in their key role in food production,
and that women and children are most vulnerable to waterrelated disasters.
Restricted access means that women spend a large amount
of their time collecting water, time which could be spent on
income-generating activities or other family activities. Girls who
are responsible for collecting water may be unable to attend
school because of this duty. Collecting water may also be
dangerous and expose women and girls to the risk of sexual and
gender-based violence. In areas where water is only available
in public settings, these should be properly lit and centrally
located in the community, to avoid the need for women to enter
unsafe areas. Womens central role in the provision of water
means that they should also be involved in all decision-making
processes involving water supplies for the community.
Cultural obstacles aggravate the situation, such as exclusion
from land ownership, heritage law or structural composition of
the community, which preventing women from being recognized
as citizens with equal rights.
Unsafe water supplies also constitute a serious health problem.
The absence of clean water significantly increases the impact
of HIV/AIDS. Bad hygienic conditions affect women and men
living with HIV who need healthy living conditions, including
a safe water supply. Women affected by HIV/AIDS are not able
to walk long distances to collect water and are more exposed to
additional diseases.
Sexual and reproductive health is also directly related to
sanitation and water issues, and can be affected by infections
transmitted by unsafe water.
42] NGOs have a role to play in advocating for a comprehensive

anti-discriminatory legal framework, monitoring the provision
of legal remedies, and promoting the design of targeted
public policies that refrain from discrimination.
5. Limits to the right to

safe drinking water and
sanitation
43] Misunderstandings in relation to the content on the right
to water and sanitation and its related State obligations,
as well as economic and profit motives impede its total
recognition as an autonomous human right. Indeed, in
different national legal frameworks, the right to water is
still linked to the right to life, to an adequate standard of
94
45] The privatization of water services has been controversial

since water supply, especially for basic needs, has been
identified primarily as a public good. Privatization often relies
on market profit and commercial priorities rather than the
respect of human rights. Privatization often results in reduced
access to basic social services by the poor living in slums and
squatter settlements. When effective it improves sanitation,
but results in an increase in tariffs. Higher prices for water
mean the poor have to use less or go without. It might also
lead to interruptions of the supply or to deterioration in the
quality of water.
46] The privatization of services does neither presume that
the State is no longer responsible for the fulfillment of rights,
nor that its primary responsibility has been substituted
for by a private entity. The State continues to be primarily
accountable and responsible for the progressive realization
of the right even when the provider of the service remains
responsible. Privatization cannot reduce accountability and
local control. There is a need to strengthen participatory
monitoring mechanisms, as it is extremely difficult to reverse
privatization once implemented. For this reason, the respect
of human rights should be incorporated into privatization
processes and services in order to maintain inclusion,
participation and quality of services, and increase welfare.
47] Examples of participatory monitoring systems applied
to privatization are increasingly effective. For example, the
case of the privatization of water services in Cochabamba,
Bolivia, during the so-called Water War of 2000, clearly
showed how privatization became a burden for low-income
families, who were not able to pay the charges after receiving
bills double and triple their former amount. Following civil
society protests, media involvement and the significant
participation of women, civil society rejected the water law
formulated by the government, and asked for the modification
of Bill 2029 on Drinking Water and Sewage Law and the
revocation of the contract with the private company.16 Civil
society movements succeeded.
48] The case of the Indian NGO Tarun Bharat Sangh (TBS) in
the state of Rajasthan in India is a good example of how the
community participation can improve peoples lives. The NGO
16. For more information see: Juan Barrera Cordero, La Guerra del Agua en Cochabamba, en
Investigacin Ambiental, 2009, I (I), pages 91-100, available at: www.revista.ine.gob.
mx/article/viewFile/22/17.
Chapter IV
supported the villagers by providing water services linked

to big dams. Villagers were able to eat several times a day
(rather than just once), and women had the opportunity to
contribute to community life with less time-consuming tasks.
People of the community were also taught how to conserve
water and use rainwater harvesting. The NGO has motivated
a social and environmental transformation at low cost for the
farmers of the region.

49] The following actions aim to increase effectiveness
in the implementation of the right to safe drinking water
and sanitation. The role of grass roots organizations in this
respect is crucial, as independent actors with a strategic role
to play between communities and the supply provided by
public and private actors:
Draw up short, medium and long-term strategies for
guaranteeing the right to access safe drinking water and
sanitation
Update water regulations
Include the right to access safe drinking water and
sanitation in all institutional documents, laws and
strategies as an enforceable right
Integrate the issue of cultural diversity in water
management
Integrate a gender perspective in water issues

Create public policies congruent with the elements of
the human right (availability, accessibility, affordability
and quality of water) and with special emphasis on nondiscrimination and equal protection
Share appropriate knowledge and technologies
Encourage the participation of stakeholders, water
user associations and experts, women, and NGOs in the
planning, management and conservation of water
Increase international aid, especially for those countries
who suffer from lack of access to safe drinking water and
sanitation.
End Water Poverty

End Water Poverty: sanitation and water for all, is an
international campaign led by the NGO Water Aid, and driven
by a growing coalition of like-minded organizations, that calls
for immediate action for the benefit of the poorest and most
vulnerable people, including disabled people, older people
and women. It argues that access to affordable services is a
fundamental right. The campaign relies on key principles for
the eradication of poverty, the sustainability of services, the
accountability of governments to their citizens and equal
distribution. It highlights the roles of water, sanitation and
hygiene education as key building blocks for development and
seeks to achieve real policy change to improve the lives of
developing communities globally.
For more information see: www.endwaterpoverty.org.
Exercises
1) Kindly analyze the legal framework on the right to water in your country: who holds water rights? And who enforces
them? Please develop.
2) What is water scarcity? How to balance the daily increasing demands with the limited supplies in terms of fulfillment
the right to safe drinking water and sanitation?
3) Analyse the assertion Water scarcity is responsible for the internal displacement of millions of people through water
conflicts and environmental conditions such as drought in light of the so called cluster approach.
95
The right to enjoy the benefits

of scientific progress and its
applications
97
1. Definition of the right to enjoy the benefits of scientific progress and its
applications
99
a. Progressive realization
b. Science and human rights principles
c. Human rights-based approach to science
103
4. The relation of the right to other human rights
105
SCIENTIFIC
PROGRESS
101
3. Core obligations
Chapter IV
UNESCO/Esther Mooren
The right to enjoy

the benefits of
scientific progress
and its applications
Each day the world becomes more interconnected, a transformation accentuated by the speed of
modern globalization. Science and technology play a central role in global and local linkages and
advancements. Science and its applications have transformed our understanding of the world we
inhabit and the ways in which we live in it. The right to enjoy the benefits of scientific progress
and its applications seeks to ensure equitable distribution of the knowledge and tools that impel
social advancement. At its essence it is a powerfully egalitarian proposition that comprises both
individual and collective dimensions. These dimensions, in turn, create entitlements that require
significant international cooperation in relation to the sharing of the knowledge, technical
advancements and scientific resources necessary for this right to be fully realized. Until recently,
neither the scientific nor human rights communities had given this right much consideration;
however, its implications are now being investigated and its potential discussed.
1. Definition of the right to enjoy

the benefits of scientific
progress and its applications
1] The right to enjoy the benefits of scientific progress and its
applications is expressly granted under international human
rights law. It is specified in both the Universal Declaration of
Human Rights1 (Article 27) and in the International Covenant
of Economic Social and Cultural Rights2 (Article 15(1)(b)). To
date, it is a right that has carried little weight in political
decision-making or the human rights movement, apart from
mention in international instruments concerning genetic data,
biodiversity and states economic duties: for example, Articles
9 and 13 of The Charter of Economic Rights and Duties of
States, adopted by the UN General Assembly on 12 December
1974; Article 19 of The International Declaration on Human
Genetic Data, passed by the UNESCO General Conference on
16 October 2003; and Article 15 of The Universal Declaration
on Bioethics and Human Rights, passed by the UNESCO
General Conference on 19 October 2005.
1. UN General Assembly, Universal Declaration of Human Rights, 10 December 1948,

217A(III).
2. UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16
December 1966, United Nations.
2] Article 27 of the Universal Declaration of Human Rights

(UDHR) contains two paragraphs related to science. The first
stipulates that everyone is entitled to share in scientific
advancement. The second deals with the rights of scientists
to the protection of their moral and material interests in any
discovery or development they make or produce.
3] Following the UDHR, the International Covenant of
Economic Social and Cultural Rights (ICESCR), legally speaking
the strongest enumeration of state obligations concerning
such issues, recognized that it is the right of everyone to
enjoy the benefits of scientific progress and its applications.
Here, the right is linked with two other provisions on
intellectual property and cultural participation.
4] There have been few substantial attempts to interpret
the right to enjoy the benefits of scientific progress and its
applications. The lack of a consensus as to what the right to
scientific benefits entails has made, and continues to make,
implementation difficult. However, the neglect of the right can
be juxtaposed with its potential to reshape research agendas
and development programmes and, in general, to do much good.
5] Under the auspices of UNESCO, three expert meetings have
taken place on the right. These meetings have reflected upon
the role such a right plays in todays world which is dependent
97
upon science and technology.3 The most comprehensive

analysis of the right took place at a meeting in 2009 and
produced the Venice Statement on the Right to Enjoy the
Benefits of Scientific Progress and its Applications.
6] The Venice Statement holds that the right to enjoy the
benefits of science is applicable to all fields of science and its
applications. Therefore, scientific progress in pharmaceuticals,
agriculture, food production, space engineering, environmental
management, electronic communication and all other fields of
science are to be shared with everyone. Furthermore, the Venice
Statement proclaims that the right to science is a right that can
be enjoyed both individually and collectively. An example of an
individual entitlement could be the access to pharmaceutical
facilities. A collective entitlement in an environmental setting
could be where a development project is proposed for an area
previously unexposed to development. Here, the local community
would hold a collective entitlement to knowledge gained through
environmental as well as public health impact assessments, based
on scientific knowledge of how industrialization is impacting
human and environmental health.
7] The convergence of the right to scientific benefits,
protection of intellectual property and the entitlement to
participate in culture seems to make an unusual and uneasy
partnership. The tension between a collective entitlement
to scientific benefits and the individual ownership provided
for by intellectual property regimes is one example of the
seeming peculiarity in grouping these provisions. There is
therefore a need for deeper reflection upon these issues. The
grouping perhaps indicates that the right to science could be
used to influence and modify intellectual property law to be
more considerate of human rights implications. It should be
noted that none of these rights are absolute and that they
must be balanced against other human rights obligations.
8] The right to science embodies the idea that progress leads
to improved social conditions and therefore requires that the
applications and benefits created by scientific progress be
shared with everyone, not just those who contributed to the
developments.
9] The terms of the right which are important to any
construction of a definition are:
a. Science. The search for discovery of new knowledge as an
end in itself sets scientific research apart, and has been
used to differentiate between science and other areas of
culture and innovation.
b. Its applications. Controversially, the applications of
science today are commonly viewed in terms of technology.
The distinction between technology and application is
arguable; however, some in the scientific realm assert
3. Amsterdam (2007), Galway (2008) and Venice (2009).
98
Chapter IV
that technology is distinct from science as it uses existing

knowledge to develop solutions to practical problems with
the aim of seeking profit. As such, some may argue that
technological developments are not covered by the right
to science. Most advocates agree, however, that such a
limited interpretation cannot apply and technological
developments should be included within any definition of
its applications when considering the right to science. The
UN Committee on Economic, Social and Cultural Rights (the
UN Committee) is yet to provide guidance on the issue.
c. Enjoyment of the benefits. These are understood to be
material benefits that can be enjoyed by individuals in dayto-day life. To construct an exhaustive list of all benefits
brought by science and its applications would be virtually
impossible. Generally, benefits from scientific progress can
be either direct or indirect and arranged into three broad
groups: short-term, long-term and public benefits.
Short-term benefits include upfront payments or employment
and research opportunities available to communities or
participants involved in the scientific endeavours. For example,
if the development of biological resources, such as nutritional
products, is conducted in accordance with the right to science,
then the members of local communities should be trained
and substantively participate in the development processes,
resulting in another short-term benefit improvement of incountry technical and institutional capacity.
Long-term benefits that are not public benefits normally
occur when a successful application is derived from research.
In this instance, intellectual property rights generally result
and bring monetary gains. This can also result in income from
cultivation and supply of material. However, under the current
economic structure access to successful applications for
marginalized nations, communities and individuals have been
difficult to secure. The main barrier is cost which restricts
access to a beneficial scientific application. The right to the
benefits of scientific progress could therefore be utilized to
reinforce calls for more equitable access to medicines and
seeds for small-scale agricultural farming.
The public benefits of science, such as the development
of medicines to address disease, better infrastructure, and
machinery to improve water management, food production
and protection against natural disasters and so on, should be
enjoyed by all under the right to science.
10] The right to the benefits of scientific progress should
also be defined in terms of setting the agenda for scientific
progress. That is, the needs of the marginalized, poor and
those traditionally excluded from science should be placed
on the research and development agendas of scientific
communities in a meaningful, participatory and engaged
manner to ensure that the benefits of science hold practical
benefits for their lives and assist in poverty eradication.
Chapter IV
11] In spite of difficulties encountered in evolving a
definition of the right to the benefits of science, discussions
concerning the normative content of the right have begun.
Any discussions or hypothesis on normative content should
consider the fundamental principles of human rights, in
particular non-discrimination, with the aim of fostering the
development of an enabling and participatory environment
for scientific progress, which would ensure protection from
abuse and the adverse effects of science and its applications.4
a. Progressive realization
12] The belief that communities can attain respect for all
human rights through economic, scientific and social progress
is a strong, recurring theme in the ICESCR, reflected in the
principle of progressive realization.5 States obligations are
to be achieved incrementally by drawing upon the maximum
of a nations available resources.
13] The right to the benefits of science embodies the
idea that progress leads to improved social conditions and
therefore requires the applications and benefits created
by scientific progress to be shared with everyone, not just
those who contributed to the developments. Scientific
developments or applications that can greatly improve social
conditions should therefore be adapted to become available,
accessible and appropriate so that everyone can enjoy the
benefits. Otherwise minority and marginalized communities
are left behind.
14] One area where scientific progress could be adapted is
electronic communication and technologies. At present,
under 30 per cent of the worlds population has access to
the internet and computer technology. Computer illiteracy is
also a barrier to obtaining employment. There is therefore a
need and indeed an obligation under the right to the benefits
of science, for nations to assist in surmounting the cost of
such technologies so as to make them accessible to and
appropriate for communities affected by poverty. Programmes
need to be developed and implemented that consider the
notion of available resources, and which also ensure that
segments of society are not excluded from enjoying the right.
15] In high to middle-income countries programmes should
be implemented to ensure that indigenous, immigrant and
rural communities have access to computer technologies.
In countries where access to computer technologies is low,
programmes need to draw on available resources to increase
general access and availability. The Hole-in-the-Wall project,

for example, refurbishes old computers and installs them along
with free internet access in disadvantaged communities in rural
India to allow residents to gain computer and internet skills.6
16] International technical assistance is also emphasized
in the ICESCR and should be used to bolster poorer nations
access to the benefits of scientific progress and assist in
progressive realization. Richer nations should develop
or assist the development of low-cost alternatives for
communications and computer technologies, so as to increase
their use in poorer nations. Such developments are occurring
on an individual level. For example, the founder and director
of the Massachusetts Institute of Technology (MIT) Media
Laboratory, Nicholas Negroponte, has developed a laptop at
very low production cost. The laptop incorporates solar power
and other technologies to neutralize the cost of use so that
the poorest families can gain access to computer technology.7
Steps to establish national frameworks and international
partnerships to secure and share such developments would be
advocated by the right to science.
b. Science and human rights principles

17] The right to enjoy the benefits of scientific progress must
be interpreted and applied consistently with fundamental
human rights principles, such as respect for human dignity,
non-discrimination, gender equality, accountability and
participation, and with particular attention paid to the needs
and position of disadvantaged and marginalized groups.
18] Human dignity, in relation to interpreting the right to the
benefits of scientific progress, can be used both as a standard
for scientific research to ensure informed, autonomous
consent is obtained and as a constraint regarding scientific
policy.8 Governments must therefore appraise the implications
of development and availability of science and technology
on human dignity. Such appraisals should consider the
frameworks of distribution of positive contributions and
protection from damaging or dangerous repercussions.
Indeed, science can constitute a challenge or an affront to
human dignity (for example, during the Second World War
when scientific experiments were performed on political and
civilian prisoners).
19] An area of scientific progress that has received significant
international attention is research involving the human
genome. Civil society and some national governments have
raised serious concerns about the possibility of discriminatory
practices in and around genetic research and development.
As a result of growing concerns UNESCO prepared the
4. The Venice Statement on the Right to Enjoy the Benefits of Scientific Progress and its
Applications, can be accessed through the United Nations Educational, Scientific and
Cultural Organization (UNESCO), The Right to Enjoy the Benefits of Scientific Progress and
Its Applications, France: UNESCO (2009). (Venice Experts Meeting Report).
6. Details of The Hole-in-the-Wall Project can be found at www.hole-in-the-wall.com/

abouthiwel.html.
5. ICESCR Article 2(1); The United Nations Committee on Economic Social and Cultural
Rights (General Comment n17) paras 2527.
8. A.R. Chapman, Towards an understanding of the right to enjoy the benefits of scientific
progress and its applications, Journal of Human Rights, 8 (2009) p. 12.
7. Details of the project can be accessed at http://one.laptop.org.
99
Universal Declaration on the Human Genome and Human

Rights to provide parameters for this new scientific field.
The Declaration underscores the importance of all genetic
research being conducted with respect for human dignity and
freedom and in compliance with human rights.
20] When advocating for the right to the benefits of scientific
progress, a central argument is that the right requires that
precaution be exercised when researching, developing and
distributing scientific endeavors, so as to be as certain as
possible that negative and harmful impacts that undermine
a persons dignity do not occur, particularly in already
marginalized communities.
21] The right to enjoy the benefits of scientific progress
and its applications applies equally to everyone, without
discrimination of any kind. Achieving equitable access to the
opportunity to benefit from science is therefore central to
the realization of the right. In order to practice the right
in a non-discriminatory manner, both protective measures
prohibiting discrimination and active measures such as
positive discrimination for groups traditionally excluded from
scientific endeavors must be taken.
22] The UN Committee has provided explicit and repeated
guidance emphasizing that the realization of every human
right must be sought with special attention paid to women,
minorities, the poor, indigenous peoples, rural and
remote communities and other disadvantaged groups. The
right to the benefits of scientific progress must therefore be
interpreted to ensure emphasis is given to:
(i) the needs of these groups in particular, especially in the
setting of research agendas
(ii) ensuring access and distribution of the benefits and
application to these groups, and
(iii) creating opportunities for participation and involvement
in science at an individual and community level for these
groups.
Chapter IV
a tool that increases accountability. In relation to the right

to science, participation translates into societal involvement
(at the least) in setting priorities for and the planning of
scientific progress. UNESCO advocates the use of a more
inclusive relationship dynamic to involve and empower people
and communities in decisions about science and technology
priorities and policies. Such changes to social governance
could utilize scientific advancements such as the internet
and mobile phone applications to raise and discuss issues in
a public, transparent and accountable forum.
25] Natural resource management is a contemporary and
rapidly evolving arena where scientific research is fundamental
to public policy, corporate actions and the quality of life,
enjoyed by each of us. Community participation is a growing
phenomenon that draws upon a collection of international
legal instruments from both human rights and environmental
law. The development of prior free and informed consent
as a requirement before development or industrial activities
take place on indigenous lands is one embodiment of the
principle of participation. However, the quality of community
participation must be examined and protected. The magnitude
of natural resource use and management across the globe
should not distract from endeavors to focus on details of local
human rights enactment in an environmental context.
26] The right to the benefits of scientific progress could
play a protective role in securing meaningful community
engagement with natural resource management, ensuring that
communities gain access to the latest scientific knowledge
to throw light on the impacts of coal, mineral or diamond
mining, oil drilling or logging of carbon dense forests. Such
a development would strengthen arguments for precaution
in proceeding with short-term, rapid, industrial development
where the environmental consequences are uncertain.
c. A human rights-based approach to science
23] The UNESCO LOral Awards for Women in Science

encourage and recognize womens contributions to scientific
progress. Since 1998, five awards are presented annually to
outstanding women researchers who have contributed to
scientific progress. The awards alternate biannually between
life and material sciences, across five regions (Africa and
the Middle East, Asia-Pacific, Europe, Latin America and the
Caribbean and North America). In addition, fifteen young
female scientists employed in exemplary and promising
research projects are awarded two-year fellowship funding.
Similarly targeted programmes are urgently required if the
right to the benefits of scientific progress is to be fulfilled in
a non-discriminatory manner.
27] It is the nature of basic scientific research that it

generally directs science toward the pursuit of knowledge
and not the objective of human betterment.9 Yet inside the
paradigm of human rights the re-orientation of the sciences
towards consideration of the disadvantaged can occur. It is a
commitment the international community has already made,
in pledging to end discrimination and vowing to realize
human rights via the UN Charter and other international
human rights instruments. As long as all the guiding
principles established for scientific research and development
respect the necessities for scientific freedom, being freedom
of movement, association, expression and communication
(which are all respected and protected human rights in-andof-themselves), as well as access to data, information and
24] Participation is a key element in all human rights. It

is a means of empowering individuals and communities and
9. A.R. Chapman, Towards an understanding of the right to enjoy the benefits of scientific
progress and its applications, Journal of Human Rights, 8 (2009) p. 7.
100
Chapter IV
research materials, then the right to science will serve as a

positive influence in re-shaping the way our world progresses.
28] In the modern era, scientific research is split between
publicly funded institutions and private enterprise, with the
majority of research and development occurring inside big
business. This structure leaves out the needs of the poor and
other marginalized groups. The sheer cost of research and
development has been a driving factor in the industrialization
of science, which has seen state contributions to science
level off or diminish and often become focused on military
developments. Secrecy and property rights therefore hold everincreasing importance in the world of science. Critical research
in areas of health, agriculture, environmental management
and development of appropriate technologies are neglected
because they do not present lucrative pursuits. The right to
the benefits of scientific progress should be interpreted to
give precedence to researching applications which assist the
disadvantaged and contribute to the fight against poverty.
29] Incorporating a human rights approach to innovative
thinking is not as difficult as it may first seem. The main
prerequisites are awareness and time. For example, Google
engineers are directed to spend 20 per cent of their time
working on things about which they are passionate.10 If even
only 5 per cent of that time was to be devoted to projects
that could contribute to the promotion of human rights,
then perhaps technological advancements would be more
applicable, available and appropriate for the worlds poor
and disadvantaged. The possibilities for achievement could
increase even further if such projects were to be rolled out
across the scientific professions.
30] At the global level, implementation of the right to the
benefits of scientific progress requires the introduction of a
human rights-based approach to agenda-setting for science
research and development. Currently, the national budgets of
states in the Global South are small and often dependent upon
aid for the delivery of social programmes. These nations do
not have the means to invest in the infrastructure, technical
training and educational and human capital necessary for
high-level scientific research. The implemention of the
right on a global scale would mean that southern Asian and
African nations likely to be most affected by increasing
water shortages, growing levels of desertification and
salinization of crop lands would hold an entitlement to the
technologies developed, which could contribute to lessening
their environmental afflictions. Furthermore, under the right
intellectual property constraints of such technologies should
be moderated to allow for free or low-cost access as, on
balance, human rights imperatives to enable immediate use
outweigh the property rights of creators.
scientific targets has already occurred in relation to the

implementation of agendas for the Millennium Development
Goals (MDGs). MDG7(c), to halve the proportion of people
without sustainable access to safe drinking water and basic
sanitation, represents one such instance.11 Setting similar
agendas in relation to the broader human rights spectrum
is a necessary step to guiding development projects. For
example, a plausible target in relation to health aid funding
would be that the right to the benefits of scientific progress
dictate that vaccinations not requiring cold-chain storage be
chosen over vaccinations that require controlled, continuous
refrigeration.
32] Scientific freedom is not and never has been absolute;
it is currently constrained by Intellectual Property (IP) law,
economic imperatives and political power. The restrictions
upon the inquiries of science and motivations behind
scientific progress are contorting research and development
away from a human rights approach with concerning results.
3. Core obligations
33] In relation to the right to enjoy the benefits of scientific
progress, the core minimum obligations are grounded in
scientific policy, legal and social management of knowledge
resources, and identification of accountability for violations.
Other economic, social and cultural rights can be grouped
into the obligations of a state to respect, protect and fulfil.
The trichotomy of obligations includes both national and
international aspects.
34] The obligation to respect human rights attaches to
all laws, institutions, offices and branches of state parties
to human rights treaties. In this regard, states which have
ratified the ICESCR must ensure that their laws and policies
respect the freedom necessary for scientific research to
occur both individually and collectively. Any interference by
the government that constrains or ideologically constructs
research should be limited to promoting the quest for socially
beneficial applications, and needs to comply with the general
principles prescribed for imposing limitations upon a human
right. The interference/restriction must:
(i) be prescribed by law
(ii) be necessary in a democratic society
(iii) meet specific objectives such as protection of public
morals, public safety or national security, and
(iv) be a proportionate response imposed in the least
intrusive manner.12
31] Translating the promise of human rights into

11. See www.un.org/millenniumgoals.
10. Google Corp, 2009, electronically accessed.
12. ICESCR Article 4; General Comment n17 para. 22.
101
35] Any measures that prevent the release of research

because it conflicts with political decisions of the state would
constitute a violation of the right to science. An example
of such behaviour occurred in Mexico when the government
sought to prevent the publication of research exposing
environmental concerns about toxic dumping occurring under
the auspices of the North American Free Trade Agreement
(NAFTA).13
36] The freedom to communicate between scientists is
essential to scientific progress. Computer and electronic
communication has greatly increased the abilities of scientists
to communicate, however physical travel is sometimes
necessary. Authoritarian and democratic governments alike
have been guilty of refusing to allow scientists to exit or
enter into their country. This prevents the presentation of
scientific views at meetings and conferences and quashes
collaboration between scientists at various research
institutions. An example of this is the hostility and difficulties
Cuban scientists have encountered in obtaining permission to
enter the United States.14
37] A more controversial aspect of controlling scientific
investigation and progress is the role intellectual property
(IP) regulations play in restricting the sharing of data and
in thwarting cooperative innovation. The negative impacts/
influences that IP law has on human rights form an ongoing
debate. The debate is complicated by the cost of scientific
research, predominately borne in contemporary society by the
private sector, and the prominence given by the international
community to private international trade activities as a means
of economic development. At a minimum, however, the law
should hold that IP rights, which are not absolute, must not
be implemented in a manner that breaches human rights.15
38] The obligation to protect applies both to acts of
commission and acts of omission. Therefore a state is obliged
not to commit an act which violates the right to science, but
must also take steps to prevent third parties from committing
such a violation. The states obligation to protect against
development of harmful applications of scientific knowledge
or the utilization of science to the detriment of human rights,
fundamental freedom or human dignity,16 at first seems to
be simple and uncontroversial. However, the practicalities
concerning such a duty become more complicated when
determining how to apply it to inherently harmful technologies
such as weaponry and other military machinery.
39] The core obligation to protect could therefore require
the enactment of the precautionary principle. Precaution
is a strategy for addressing risk [which] necessitates
13 Audrey R. Chapman, Towards an understanding of the right to enjoy the benefits of
scientific progress and its applications, Journal of Human Rights, 8, pp. 136 (2009).
Chapter IV
the capacities to identify hazards and opportunities, to

forecast scenarios and their associated outcomes, and
to take anticipatory measures to manage causes before
adverse outcomes occur.17 In short, precaution requires
contemplation, assessment and planning for all adverse
scenarios, and where there is high likelihood of an adverse
outcome it seeks to restrain and amend behaviour. Therefore,
the right to scientific progress could require that statements of
compatibility or assessments of implications for human right,
be conducted before a scientific research and development
operation takes place.
40] Fulfillment of the right to enjoy the benefits of scientific
progress requires first and foremost an explicit commitment
to the development of science and technology for the benefit
of humankind. In this regard, a state could draw on the
Venice Statement. A state could then adopt legal and policy
frameworks which promote the diffusion of science and its
applications. Here, transnational obligations contained in the
right to science again arise. The belief that science should be
used for beneficial ends for all people is the basis of the right
to the enjoyment of scientific progress and its applications,
creating a common goal. It is a goal all Member States to
the United Nations have agreed to indirectly by pledging to
the aims of promoting peace, development, higher standards
of living, and universal respect for human rights in the UN
Charter. States that have ratified the ICESCR have directly and
explicitly agreed to work towards such a goal.
41] The core obligations to fulfil require that significant
cooperative efforts be made between nations, regions, private
and public sectors. The fundamental human rights principles
of participation, non-discrimination and protection from
abuse and adverse effects must shape the implementation
of the right to the benefits of scientific progress. Attention
must be given by all actors particularly to the needs of
the most vulnerable, who often bear the uneven brunt
of damaging effects caused by progress and technology.
The design of development assistance programmes must
therefore incorporate securable access to beneficial scientific
technologies. Arguably, under such obligations, companies
should provide beneficial technologies at cost to poorer
communities, or pass on the necessary scientific information
to enable generic production.
42] The transnational obligations and extraterritorial
influence of the right to scientific progress, can be used
to guide not only the research agendas of environmental
science and climate change, but also govern the distribution
of technologies developed to address the problems. The
right to the benefits of scientific progress is a human rights
elucidation of the principle of common but differentiated
responsibilities. It captures the reality that not every nation
14. For more information see http://shr.aaas.org/rtt/report/one.htm.

16. The Declaration on the Use of Scientific and Technological Progress (1975) Article 8.
102
17. J.B. Wiener, Precaution, in D. Bonansky, J. Brunne and E. Hey (eds) The Oxford
Handbook of International Environmental Law, Oxford: Oxford University Press (2007). p.
598.
Chapter IV
will have the resources and advantages of scientific progress

to assist in easing the burdens of environmental predicaments
and realizing human rights. Therefore, the right needs to
supercede national patent and IP laws and regulations when
the applicable innovations/technologies are essential to
preventing or alleviating human rights failures within the
environmental context.
43] Such problems disproportionately impact the poor, who
have the least means to adapt or develop. Environmental
problems are also expected to increase and are unlikely to
be resolved quickly. Significant investments, both financial
and political, therefore, need to be made in the area of
environmental sciences. From a human rights-based
approach, it is imperative that the agenda be set from a
needs-based perspective, to prioritize those without the
ability to move from barren lands, or without the resources
to gain food, water, shelter or income from any means other
than the lands on which they live.
44] Such action is reflective of the obligations to protect and
fulfil the right to scientific progress. A dynamic understanding
of the right to science, encompassing contemporary financial
and environmental truths, recognizes the difference in the
contributions various nations and communities can make to
scientific progress; however, each is part of a common aim
the progress of humankind.
Core Obligations
Respect:
Respect and enable the freedoms indispensable for scientific
research
Respect scientific and academic autonomy
Respect and enable scientific collaboration
Ensure measures are taken to minimize the use of science in
a manner which is inconsistent with the enjoyment of other
human rights.
Protect:
Prohibit acts of commission and omission which violate the
right to science
Regulate the behavior of third parties in the field of
scientific research to protect against exploitation of
research participants
Require that all research participants give free, prior
informed consent
Recognize that the risks presented by technologies vary
across and within societies
Acknowledge that globalization carries significant
implications on scientific endeavors and consider how to
ensure a more equitable distribution of the benefits and
minimize the negative impacts affecting those communities
afflicted by poverty.
[Core Obligations]
Fulfil:
Make explicit commitments to the right to science and
adopt a policy framework to promote the equitable diffusion
of science and technology
Develop national plans to redirect scientific research and
development agendas
Prioritize the needs of the poor and disadvantaged
Establish and secure strong and inclusive scientific
education programmes
Enable science to engage positively with all segments of
society.
4. Human rights
45] The Vienna Declaration asserted that all human rights
are universal, indivisible, interdependent and inter-related.18
The right to enjoy the benefits of scientific progress is
intimately connected with a number of other human rights.
Academic and scientific freedom must be granted along
with freedom of expression and the right to seek, receive
and impart information, in order for scientific investigation
and progress to be made. An example of a violation of
these rights occurred in Serbia in 1998 when the Serbian
Parliament enacted a law that gave the government control
to appoint rectors, deans and the governing boards of all
public universities without input from university faculty.
All faculty members were required to sign new contracts,
nullifying existing employment agreements, including tenured
positions. Academics who expressed views that criticized or
opposed the government were summarily dismissed.
46] The importance and influence of scientific investigative
processes and thinking in todays world is paramount. The right
to science and the right to education mandate the provision
of effective opportunities for individuals from disadvantaged
social position to access scientific education and institutions.
At the individual and educational level aggressive steps
should be taken to ensure that all science students are
informed and trained to understand the complexity of the
bond between science and human rights. A small number of
scientific schools have started such programmes, for example,
the Science in the Service of Human Rights course run at
Princeton University.19
47] The right to development is also intimately linked to
the right to science. A basic example is sanitation, the
18. Vienna Declaration and Programme of Action, 1993, para 5.
19. The course outline can be found at http://shr.aaas.org/coalition/syllabi/general/
Claude_2002.pdf.
103
Chapter IV
increased provision of which has been set as MDG 7(c).

Science and technology can play a major role in addressing
sanitation difficulties. Research and development involved
in the natural sciences, engineering, renewable energy and
water services can all provide the scientific applications to
improve excrement disposal and treatment, and also minimize
the use of water in improved sanitation facilities, especially
as water scarcity increases. The research and development
being undertaken by corporations, in treating and purifying
wastewater, is a prime example of where cooperation with
governmental programmes could contribute greatly to rapid
improvement of the worlds water management and use. Better
sanitation builds a healthier population who can spend more
time making economic contributions to a community rather
than fighting disease.
Health, HIV-AIDS and Scientific Progress

The right to health is closely linked to the realization of
the right to enjoy the benefit of scientific progress and its
applications. This human right is perhaps the less known of all
human rights but is, paradoxally, the more and more pertinent
in our technologically-driven society. Many important
developments in biotechnology, bioethics and biology have
improved techniques to prevent, treat or cure a wide variety
of diseases. However these developments have neglected
diseases which primarily affect people living in poverty in
developing countries.
The ICESCR imposes in relation to the right to health, an
obligation on States to take steps necessary for: the prevention,
treatment and control of epidemic, endemic, occupational and
other diseases (Article 12 (2)(c)). And to give effect to the
right to enjoy the benefits of scientific progress, States have
an obligation to: take steps necessary for the development
and diffusion of science.(Article 15). States are therefore
asked to support the development and diffusion of science for
the prevention, treatment and control of disease and to make
essential drugs available in order to fulfil both human rights.
This includes the role of private sector and pharmaceutical
companies that have a corporate social responsibility (CSR)
in order to ensure to sustainable economic development. In
relation to HIV-AIDS management for example, measures taken
to increase availability and accessibility and awareness of HIVAIDS for example are indispensable for enhancing awareness
and acceptance of this disease in order to improve their
quality of life and to facilitate and reinforce the commitment
of the pharmaceutical industry with innovative solutions in
order to fight against.
Some jurisprudence can be mentioned on this. The Court
of the Bolivarian Republic of Venezuela granted an amparo
action and stated the existence of a violation of the right to
health and the right to benefit from scientific progress and its
applications in a case related to people suffering from HIVAIDS who had no social insurance and no economic capacity
to provide themselves with special medication (Cruz Valle
Bermudez y otros c. MSAS s/amparo, 1999, Expediente
n15.789 Sentencia n196). The Court ordered the Health
and Assistance Ministry (HAM) to supply to the applicants
the drugs on a regular basis and order a preventive policy be
developed and to correct the budgetary allocations to be given
to people suffering HIV-AIDS.
[Health, HIV-AIDS and Scientific Progress]
As a consequence of this decision, and on the basis of the

subsequent decision Lpez Glenda y otros c. Instituto
Venezolano de los Seguros Sociales (IVSS) s/ accin de
amparo, 2001, Expediente 00-1343, Sentencia N487, the
Venezuelan Health policy was modified.
48] There are also obvious links with the right to food and
the right to health. The biomedical and bio-agricultural
boom that has captivated much of scientific research and
development over the last two decades must be balanced
and modified by human rights perspectives to ensure that
scientific progress does not again compromise human dignity.
The results of the bio-boom have been a rapid growth in
the number of patents being placed on plant, genetic and
other micro-organic data. A segment of business, with the
aid of some scientists, has engaged in bio-prospecting in the
search to discover the next natural alleviation for sunburn or
revitalizer for dry and damaged hair. The term bio-piracy has
also been coined to describe the use of indigenous peoples
traditional knowledge, covering the possible uses of plants,
other natural objects and DNA for commercial exploitation,
without the appropriate consent being gained or the provision
of adequate compensation.20
49] The experience of indigenous peoples from the Amazon
concerning the patenting of the sacred Yag plant highlights
the problem of how IP regulations sometimes inhibit the
enjoyment of the direct and indirect benefits of science. It
can be further asserted that IP regulations (in this form)
enable violations of human rights such as privacy and
non-discrimination, as they fail to provide for collective
ownership. In 1996, Loren Miller (a scientific researcher)
was granted a patent over the Yag plant after showing the
difference between his sample of the plant and a variety
growing naturally in Hawaii. However, the International Plant
Medicine Corporation of the United States of America, who
issued the patent, were not informed that the peoples of
Amazonia had in fact been cultivating the variety invented
by Miller for generations.21
50] The right to the benefits of scientific progress is also
central to developing means to address and overcome
the environmental challenges and dilemmas increasingly
being encountered across the globe. Litigation involving
human rights and the environment is highly avant-garde
in its attempts to secure protection of human dignity and
environmental balance. Justiciability of economic, social and
20. A. Jacanimijoy, Initiatives for protecting rights holders of traditional knowledge,

indigenous peoples and local communities, UN Doc. WIPO/INDIP/RT/98/4E, 15 July
1998.
21. R.P. Claude, Scientists Rights and the human right to the benefits of science, in A.R.
Chapman and S. Russell (eds) Core Obligations: Building a Framework for Economic, Social
and Cultural Rights, Antwerp and Oxford: Intersentia (2002), p. 255.
104
Chapter IV
cultural rights as well as environmental considerations has

been difficult to secure and slow to advance.
51] The development of the Maastricht Guidelines on
Violations of Economic, Social and Cultural Rights22 helped
greatly in providing guidance for structuring economic,
social and cultural rights claims. Combining human rights
with environmental concerns, has also proven to be a good
litigation tool, drawing scientific evidence into the courtroom
to establish the cause and apportion responsibility for human
rights violations triggered by environmental changes. In its
report on the relationship between human rights and climate
change the International Council on Human Rights Policy
(ICHRP) said: Lawsuits draw attention to harmful effects that
might otherwise remain below the public radar, put a name
and face to the otherwise abstract suffering of individuals and
provide impetus and expression to those most affected by the
harms of climate change. They can thus mobilise public opinion
in support of policy change.23
52] Court cases involving the human impact of climate
change effects will increasingly be brought before courts.
This will force consideration of environmental science and
human entitlements into courtrooms. Petitioners will identify
the policy decisions of governments as being the acts that
caused or contributed to the harm, from which they are
seeking relief.
53] The leading international case in relation to this area is
the Inuit Case.24 This case was brought by a coalition of Inuit
peoples from Canada and the United States before the InterAmerican Commission of Human Rights. The petition was
filed in December 2005, and called for obtaining relief from
human rights violations resulting from the impacts of global
warming and climate change caused by acts and omissions
of the United States.25 Causation was a central issue during
the hearing of the petition. The petitioners had to establish
that government policy enabled and contributed to climate
change a complex allegation if they were to be successful.
Scientific knowledge would be essential to prove causation.
During the public hearing the Commissioners questioned
counsel for the petitioners repeatedly on the manner through
which liability for a particular state could be established
when other states acted in a similar manner. In effect, this
line of questioning was seeking a delineation of the causal
chain and guidance on the apportioning of fault. Scientific
evidence is central to establishing the balance of probability
on such delineation and apportionment.
22. Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, 26 January
1997.
23. International Council on Human Rights Policy, Climate Change and Human Rights a Rough
Guide, Vernier: ATAR Roto Press (2008).
24. Petition to the Inter-American Commission on Human Rights Seeking Relief from
Violations Resulting from Global Warming Caused by Acts and Omissions of the United
States, Submitted by Sheila Watt-Cloutier, with the Support of the Inuit Circumpolar
Conference, on Behalf of All Inuit of the Arctic Regions of the United States and
Canada, (7 December 2005). The petition can be found at www.earthjustice.org/library/
legal_docs/summary-of-inuit-petition-to-inter-american-council-on-human-rights.pdf
(consulted on 7 May 2010).
25. Ibid.
54] The right to enjoy the benefits of scientific progress is

important in establishing, as the ICHRP put it, complex causal
chains that underline climate change harm.26 It is necessary
that freedom of scientific investigation and information be
protected. The ICHRP asserted that despite not succeeding:
The Inuit case suggests how human rights tribunals might
borrow, as they have done on other issues, from general
principles of tort or civil rights litigation. For example, it is
common in environmental litigation, where there are numerous
polluters, for a court to shift the burden of proof and hold the
defendant liable unless he or she can mitigate responsibility by
proving the proportional liability of other wrongdoers. Under
theories of joint and several liability, each wrongdoer is held
responsible for the entire harm in some circumstances. Such
doctrines serve to deter pollution by all and ensure greater
likelihood of redress for victims.27
This also demonstrates how scientific knowledge is central to
understanding the impact of humankind upon the environment
and apportioning responsibility for the harm caused.

55. The right to science faces a number of obstacles in its
implementation which contribute to difficulties in obtaining
justiciability. Central to this is the lack of an agreed definition.
There is therefore a need to construct a body of work that
provides guidance on how the right is to be defined and
interpreted. To this end the following actions are suggested:
a. Advocate for a day of general discussion and the
development and publication of a General Comment by the
UN Committee on Economic, Social and Cultural Rights on
the right to enjoy the benefits of scientific progress.
b. Call for specialized agencies, such as FAO, ILO, OECD,
UNDP, UNEP, UNICEF, WHO, WIPO, and other regional
agencies to issue positions or statements on how the right
to the benefits of scientific progress relates to their field
of competence.
c. Request directives and explanations from the European
Union, WTO and other trade partnerships on how the right
to the benefits of scientific progress is applied through
their trade agreements.
d. Advocate policies and plans as well as financial, macro and
micro-economic strategies, across all levels of governance,
that expressly consider the implications of scientific and
technological progress within and between societies.
26. International Council on Human Rights Policy, Climate Change and Human Rights a Rough
Guide (2008), p. 43.
27. Ibid. p. 41.
105
56] Civil society, especially those engaged in advocacy around

health, water, housing, education, freedom of communication
and sustainable development, can draw attention to the right
to the benefits of scientific progress as a human right rather
than as benefits accessible only to those with the ability to
pay. The following actions are recommended:
a. Lobby both public and private scientific research and
development operations to prioritize the needs of the poor
and marginalized in any scientific agendas, and ensure
substantive community participation.
b. Encourage educational institutions to provide basic
science classes and to discuss the relationship between
science and human rights.
Chapter IV
c. Build partnerships with scientific institutions to enable

substantive community participation in research and
development.
d. Raise awareness of the important role that science plays in
development and addressing climate change, and advocate
for the implementation of a human rights approach to
the framing and roll-out of any assistance and research
programmes.
e. In the context of preparation of shadow reports to treaty
bodies, raise matters concerning violations or concerns
around the implementation of the right to the benefits of
scientific progress.
Exercises
1) How to develop an integrated method in order to tackle the emergence of a common responsibility approach as to
sharing the benefits of scientific progress? Justify.
2) How to balance the complexity of accessing and sharing of scientific progress and its applications with the scarcity of
resources? Justify.
3) How to balance intellectual property regimes and, in particular, intellectual property protection, with the necessity of
encouraging and developing international cooperation in the scientific field?
106
ANNEXES:
107
Optional Protocol to the ICESCR
ANNEXES
113
Form to be sent to UNESCO by practioners and NGOs that would like to
complete, add or update information
Annexes
Optional Protocol to
the International Covenant
on Economic, Social and
Cultural Rights
The General Assembly adopted resolution A/RES/63/117, on 10 December 2008
The General Assembly,

Taking note of the adoption by the Human Rights Council, by its resolution 8/2 of 18 June 2008, of the Optional Protocol to
the International Covenant on Economic, Social and Cultural Rights,
1. Adopts the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, the text of which is
annexed to the present resolution;
2. Recommends that the Optional Protocol be opened for signature at a signing ceremony to be held in 2009, and requests
the Secretary-General and the United Nations High Commissioner for Human Rights to provide the necessary assistance.
Preamble
The States Parties to the present Protocol,
Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the
inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom,
justice and peace in the world,
Noting that the Universal Declaration of Human Rights1 proclaims that all human beings are born free and equal in dignity
and rights and that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, such
as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,
Recalling that the Universal Declaration of Human Rights and the International Covenants on Human Rights2 recognize that
the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby
everyone may enjoy civil, cultural, economic, political and social rights,
Reaffirming the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms,
Recalling that each State Party to the International Covenant on Economic, Social and Cultural Rights (hereinafter referred
to as the Covenant) undertakes to take steps, individually and through international assistance and cooperation, especially
economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization
of the rights recognized in the Covenant by all appropriate means, including particularly the adoption of legislative measures,
Considering that, in order further to achieve the purposes of the Covenant and the implementation of its provisions, it would be
appropriate to enable the Committee on Economic, Social and Cultural Rights (hereinafter referred to as the Committee) to carry
out the functions provided for in the present Protocol,
Have agreed as follows:
1. Resolution 217 A (III).
2. Resolution 2200 A (XXI), annex.
107
Article
Annexes
Competence of the Committee to receive and consider communications
1. A State Party to the Covenant that becomes a Party to the present Protocol recognizes the competence of the Committee
to receive and consider communications as provided for by the provisions of the present Protocol.
2. No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a Party to
the present Protocol.
Article
Communications
Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State
Party, claiming to be victims of a violation of any of the economic, social and cultural rights set forth in the Covenant by that
State Party. Where a communication is submitted on behalf of individuals or groups of individuals, this shall be with their
consent unless the author can justify acting on their behalf without such consent.
Article
Admissibility
1. The Committee shall not consider a communication unless it has ascertained that all available domestic remedies have been
exhausted. This shall not be the rule where the application of such remedies is unreasonably prolonged.
2. The Committee shall declare a communication inadmissible when:
(a) It is not submitted within one year after the exhaustion of domestic remedies, except in cases where the author can
demonstrate that it had not been possible to submit the communication within that time limit;
(b) The facts that are the subject of the communication occurred prior to the entry into force of the present Protocol for
the State Party concerned unless those facts continued after that date;
(c) The same matter has already been examined by the Committee or has been or is being examined under another
procedure of international investigation or settlement;
(d) It is incompatible with the provisions of the Covenant;
(e) It is manifestly ill-founded, not sufficiently substantiated or exclusively based on reports disseminated by mass media;
(f) It is an abuse of the right to submit a communication; or when
(g) It is anonymous or not in writing.
Article
Communications not revealing a clear disadvantage
The Committee may, if necessary, decline to consider a communication where it does not reveal that the author has suffered
a clear disadvantage, unless the Committee considers that the communication raises a serious issue of general importance.
Article
Interim measures
1. At any time after the receipt of a communication and before a determination on the merits has been reached, the Committee
may transmit to the State Party concerned for its urgent consideration a request that the State Party take such interim
measures as may be necessary in exceptional circumstances to avoid possible irreparable damage to the victim or victims
of the alleged violations.
2. Where the Committee exercises its discretion under paragraph 1 of the present article, this does not imply a determination
on admissibility or on the merits of the communication.
Article
Transmission of the communication
1. Unless the Committee considers a communication inadmissible without reference to the State Party concerned, the
Committee shall bring any communication submitted to it under the present Protocol confidentially to the attention of the
State Party concerned.
2. Within six months, the receiving State Party shall submit to the Committee written explanations or statements clarifying
the matter and the remedy, if any, that may have been provided by that State Party.
108
Annexes
Article
Friendly settlement
1. The Committee shall make available its good offices to the parties concerned with a view to reaching a friendly settlement
of the matter on the basis of the respect for the obligations set forth in the Covenant.
2. An agreement on a friendly settlement closes consideration of the communication under the present Protocol.
Article
Examination of communications
1. The Committee shall examine communications received under article 2 of the present Protocol in the light of all documentation
submitted to it, provided that this documentation is transmitted to the parties concerned.
2. The Committee shall hold closed meetings when examining communications under the present Protocol.
3. When examining a communication under the present Protocol, the Committee may consult, as appropriate, relevant
documentation emanating from other United Nations bodies, specialized agencies, funds, programmes and mechanisms,
and other international organizations, including from regional human rights systems, and any observations or comments by
the State Party concerned.
4. When examining communications under the present Protocol, the Committee shall consider the reasonableness of the steps
taken by the State Party in accordance with part II of the Covenant. In doing so, the Committee shall bear in mind that the
State Party may adopt a range of possible policy measures for the implementation of the rights set forth in the Covenant.
Article
Follow-up to the views of the Committee
1. After examining a communication, the Committee shall transmit its views on the communication, together with its
recommendations, if any, to the parties concerned.
2. The State Party shall give due consideration to the views of the Committee, together with its recommendations, if any, and
shall submit to the Committee, within six months, a written response, including information on any action taken in the
light of the views and recommendations of the Committee.
3. The Committee may invite the State Party to submit further information about any measures the State Party has taken in
response to its views or recommendations, if any, including as deemed appropriate by the Committee, in the State Partys
subsequent reports under articles 16 and 17 of the Covenant.
Article
10
Inter-State communications
1. A State Party to the present Protocol may at any time declare under the present article that it recognizes the competence
of the Committee to receive and consider communications to the effect that a State Party claims that another State
Party is not fulfilling its obligations under the Covenant. Communications under the present article may be received and
considered only if submitted by a State Party that has made a declaration recognizing in regard to itself the competence
of the Committee. No communication shall be received by the Committee if it concerns a State Party which has not made
such a declaration. Communications received under the present article shall be dealt with in accordance with the following
procedure:
(a) If a State Party to the present Protocol considers that another State Party is not fulfilling its obligations under the
Covenant, it may, by written communication, bring the matter to the attention of that State Party. The State Party may
also inform the Committee of the matter. Within three months after the receipt of the communication the receiving
State shall afford the State that sent the communication an explanation, or any other statement in writing clarifying
the matter, which should include, to the extent possible and pertinent, reference to domestic procedures and remedies
taken, pending or available in the matter;
(b) If the matter is not settled to the satisfaction of both States Parties concerned within six months after the receipt by
the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee,
by notice given to the Committee and to the other State;
(c) The Committee shall deal with a matter referred to it only after it has ascertained that all available domestic remedies
have been invoked and exhausted in the matter. This shall not be the rule where the application of the remedies is
unreasonably prolonged;
(d) Subject to the provisions of subparagraph (c) of the present paragraph the Committee shall make available its good
offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of the respect for
the obligations set forth in the Covenant;
(e) The Committee shall hold closed meetings when examining communications under the present article;
(f) In any matter referred to it in accordance with subparagraph (b) of the present paragraph, the Committee may call
upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant information;
109
Annexes
(g) The States Parties concerned, referred to in subparagraph (b) of the present paragraph, shall have the right to be
represented when the matter is being considered by the Committee and to make submissions orally and/or in writing;
(h) The Committee shall, with all due expediency after the date of receipt of notice under subparagraph (b) of the present
paragraph, submit a report, as follows:
(i) If a solution within the terms of subparagraph (d) of the present paragraph is reached, the Committee shall
confine its report to a brief statement of the facts and of the solution reached;
(ii) If a solution within the terms of subparagraph (d) is not reached, the Committee shall, in its report, set forth the
relevant facts concerning the issue between the States Parties concerned. The written submissions and record of
the oral submissions made by the States Parties concerned shall be attached to the report. The Committee may also
communicate only to the States Parties concerned any views that it may consider relevant to the issue between
them.
In every matter, the report shall be communicated to the States Parties concerned.
2. A declaration under paragraph 1 of the present article shall be deposited by the States Parties with the Secretary-General
of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any
time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter that is
the subject of a communication already transmitted under the present article; no further communication by any State Party
shall be received under the present article after the notification of withdrawal of the declaration has been received by the
Secretary-General, unless the State Party concerned has made a new declaration.
Article
11
Inquiry procedure
1. A State Party to the present Protocol may at any time declare that it recognizes the competence of the Committee provided
for under the present article.
2. If the Committee receives reliable information indicating grave or systematic violations by a State Party of any of the
economic, social and cultural rights set forth in the Covenant, the Committee shall invite that State Party to cooperate in
the examination of the information and to this end to submit observations with regard to the information concerned.
3. Taking into account any observations that may have been submitted by the State Party concerned as well as any other
reliable information available to it, the Committee may designate one or more of its members to conduct an inquiry and to
report urgently to the Committee. Where warranted and with the consent of the State Party, the inquiry may include a visit
to its territory.
4. Such an inquiry shall be conducted confidentially and the cooperation of the State Party shall be sought at all stages of the
proceedings.
5. After examining the findings of such an inquiry, the Committee shall transmit these findings to the State Party concerned
together with any comments and recommendations.
6. The State Party concerned shall, within six months of receiving the findings, comments and recommendations transmitted
by the Committee, submit its observations to the Committee.
7. After such proceedings have been completed with regard to an inquiry made in accordance with paragraph 2 of the present
article, the Committee may, after consultations with the State Party concerned, decide to include a summary account of the
results of the proceedings in its annual report provided for in article 15 of the present Protocol.
8. Any State Party having made a declaration in accordance with paragraph 1 of the present article may, at any time, withdraw
this declaration by notification to the Secretary-General.
Article
12
Follow-up to the inquiry procedure
1. The Committee may invite the State Party concerned to include in its report under articles 16 and 17 of the Covenant details
of any measures taken in response to an inquiry conducted under article 11 of the present Protocol.
2. The Committee may, if necessary, after the end of the period of six months referred to in article 11, paragraph 6, invite the
State Party concerned to inform it of the measures taken in response to such an inquiry.
Article
13
Protection measures
A State Party shall take all appropriate measures to ensure that individuals under its jurisdiction are not subjected to any form
of ill-treatment or intimidation as a consequence of communicating with the Committee pursuant to the present Protocol.
110
Annexes
Article
14
International assistance and cooperation
1. The Committee shall transmit, as it may consider appropriate, and with the consent of the State Party concerned, to
United Nations specialized agencies, funds and programmes and other competent bodies, its views or recommendations
concerning communications and inquiries that indicate a need for technical advice or assistance, along with the State
Partys observations and suggestions, if any, on these views or recommendations.
2. The Committee may also bring to the attention of such bodies, with the consent of the State Party concerned, any matter
arising out of communications considered under the present Protocol which may assist them in deciding, each within
its field of competence, on the advisability of international measures likely to contribute to assisting States Parties in
achieving progress in implementation of the rights recognized in the Covenant.
3. A trust fund shall be established in accordance with the relevant procedures of the General Assembly, to be administered
in accordance with the financial regulations and rules of the United Nations, with a view to providing expert and technical
assistance to States Parties, with the consent of the State Party concerned, for the enhanced implementation of the rights
contained in the Covenant, thus contributing to building national capacities in the area of economic, social and cultural
rights in the context of the present Protocol.
4. The provisions of the present article are without prejudice to the obligations of each State Party to fulfil its obligations
under the Covenant.
Article
15
Annual report
The Committee shall include in its annual report a summary of its activities under the present Protocol.
Article
16
Dissemination and information
Each State Party undertakes to make widely known and to disseminate the Covenant and the present Protocol and to facilitate
access to information about the views and recommendations of the Committee, in particular, on matters involving that State
Party, and to do so in accessible formats for persons with disabilities.
Article
17
Signature, ratification and accession
1. The present Protocol is open for signature by any State that has signed, ratified or acceded to the Covenant.
2. The present Protocol is subject to ratification by any State that has ratified or acceded to the Covenant. Instruments of
ratification shall be deposited with the Secretary-General of the United Nations.
3. The present Protocol shall be open to accession by any State that has ratified or acceded to the Covenant.
4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.
Article
18
Entry into force
1. The present Protocol shall enter into force three months after the date of the deposit with the Secretary-General of the
United Nations of the tenth instrument of ratification or accession.
2. For each State ratifying or acceding to the present Protocol, after the deposit of the tenth instrument of ratification or
accession, the Protocol shall enter into force three months after the date of the deposit of its instrument of ratification or
accession.
Article
19
Amendments
1. Any State Party may propose an amendment to the present Protocol and submit it to the Secretary-General of the United
Nations. The Secretary-General shall communicate any proposed amendments to States Parties, with a request to be notified
whether they favour a meeting of States Parties for the purpose of considering and deciding upon the proposals. In the
event that, within four months from the date of such communication, at least one third of the States Parties favour such
a meeting, the Secretary-General shall convene the meeting under the auspices of the United Nations. Any amendment
adopted by a majority of two thirds of the States Parties present and voting shall be submitted by the Secretary-General to
the General Assembly for approval and thereafter to all States Parties for acceptance.
2. An amendment adopted and approved in accordance with paragraph 1 of the present article shall enter into force on the
thirtieth day after the number of instruments of acceptance deposited reaches two thirds of the number of States Parties at
111
Annexes
the date of adoption of the amendment. Thereafter, the amendment shall enter into force for any State Party on the thirtieth
day following the deposit of its own instrument of acceptance. An amendment shall be binding only on those States Parties
which have accepted it.
Article
20
Denunciation
1. Any State Party may denounce the present Protocol at any time by written notification addressed to the Secretary-General of
the United Nations. Denunciation shall take effect six months after the date of receipt of the notification by the SecretaryGeneral.
2. Denunciation shall be without prejudice to the continued application of the provisions of the present Protocol to any
communication submitted under articles 2 and 10 or to any procedure initiated under article 11 before the effective date
of denunciation.
Article
21
Notification by the Secretary-General
The Secretary-General of the United Nations shall notify all States referred to in article 26, paragraph 1, of the Covenant of
the following particulars:
(a) Signatures, ratifications and accessions under the present Protocol;
(b) The date of entry into force of the present Protocol and of any amendment under article 19;
(c) Any denunciation under article 20.
Article
22
Official languages
1. The present Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall
be deposited in the archives of the United Nations.
2. The Secretary-General of the United Nations shall transmit certified copies of the present Protocol to all States referred to
in article 26 of the Covenant.
Source: www2.ohchr.org/english/bodies/cescr/docs/A-RES-63-117.pdf
112
Annexes
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113
Annexes
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Please return the form to:
UNESCO
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114
This manual is a response to the Millennium Development Goals (MDGs) adopted by the United Nations
Assembly in 2000 and particularly the first objective of halving extreme poverty and hunger by 2015. It
offers tools for grassroots organizations advocating human rights on behalf of all people.
The examples gathered worldwide connect policy-oriented action and legal decisions at local, national
and regional levels. The manual seeks to empower the most vulnerable and marginalized groups of
society through access to their basic human rights. It is designed to stimulate dialogue among state
authorities and civil society, and provoke exploration of innovative ways to achieve the recognition and
fulfilment of human rights for all stakeholders.
The manual also offers inspiration for the development of new strategies and approaches to extend and
strengthen state capacity and civil society action in the fight against all forms of discrimination and
exclusion worldwide.
Maritza Formisano Prada is a Colombian lawyer specialized in public policies at the Universit Panthon-Sorbonne Paris
I. A professor at the Universidad de los Andes in Bogota, Colombia and at the Universit Sorbonne Nouvelle Paris III,
she has published several articles in Latin America and France. As a UNESCO consultant, she collaborates on projects
related to political science, communication, human rights, poverty and gender.
Contact information:
UNESCO

1 rue Miollis
75732 Paris Cedex 15
France
Tel: +33 (0) 1 45 68 46 38
Fax: +33 (0) 1 45 68 57 26
http://www.unesco.org/shs
Social and Human

Sciences Sector
9 789230
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Abbreviations and Acronyms

African Court for Human and Peoples Rights

African Commission for Human and Peoples Rights

African Charter for Human and Peoples Rights

Committee on Economic, Social and Cultural Rights

Convention on the Rights of the Child

Court of the Economic Community of West African States

Education for All

European Court of Human Rights

Food and Agriculture Organization of the United Nations

Inter-American Court of Human Rights

Inter-American Commission on Human Rights

International Labour Organization

Organization for Economic Co-operation and Development

Office of the High Commissioner for Human Rights

Poverty Reduction Strategy Paper

Joint United Nations Programme on HIV/AIDS

United Nations Development Assistance Framework

United Nations Department of Economic Affairs

United Nations Development Programme

United Nations Educational Scientific and Cultural Organization

United Nations Population Fund

UN-HABITAT United Nations Human Settlements Programme

Office of the United Nations Hugh Commissioner for refugees

United Nations Childrens Fund

World Health Organization

Empowering the Poor Through Human Rights Litigation

Consecutive reports on the achievement of the MDGs show

mainstreaming human rights implies that all programmes,

Empowering the Poor Through Human Rights Litigation

This means that political, civil, economic, social and cultural

social and ethical challenges of excluded vulnerable groups

Pilar Alvarez Laso

Empowering the Poor Through Human Rights Litigation

Fundamental transformations in societies should be based on

UNESCO is devoted to this commitment and affirms the

Empowering the Poor Through Human Rights Litigation

among the main brokers between policy-makers and the

of the indivisibility and interrelatedness of all human rights

Empowering the Poor Through Human Rights Litigation

Since progressive social movements are inserting rights-based

The principles of non-discrimination and equal

Empowering the Poor Through Human Rights Litigation

How to use this manual

Empowering the Poor Through Human Rights Litigation

Chapter I. POVERTY AND HUMAN RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Defining the concept of poverty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Chapter II. THE ROLE OF JUSTICIABILITY IN THE FIGHT AGAINST POVERTY. . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Defining the concept of justiciability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Chapter III. CONCEPTUAL CLARIFICATIONS ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS. . . . . . . . 37

Empowering the Poor Through Human Rights Litigation

Minimum core approach to ESC rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Chapter IV. ALLEVIATION OF POVERTY BY ENSURING THE ENJOYMENT OF ECONOMIC,

The Right to Education. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

The right to adequate food . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Definition(s) of the right to (adequate) food1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

The right to adequate housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Definition of the right to adequate housing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Empowering the Poor Through Human Rights Litigation